Common use of Right to Participate in Certain Sales of Additional Securities Clause in Contracts

Right to Participate in Certain Sales of Additional Securities. 7.1.1 For so long as any shares of Registrable Securities remain outstanding, the Company agrees that it will not (and that it will cause its subsidiaries not to) sell or issue any shares of Capital Stock or Equity Securities, in each case, unless (x) the Company first submits a written notice (a “Pre-Emptive Right Notice”) to the Investors (for the benefit of the Investor Parties) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed sale of such Proposed Securities; and (C) the amount of such Proposed Securities proposed to be issued; provided, that following the delivery of such notice, the Company shall deliver to the Investors (for the benefit of the Investor Parties) any such information the Investors may reasonably request in order to evaluate the proposed issuance, (y) it offers to issue and sell to the Investor Parties, on such terms as the Proposed Securities are issued and upon full payment by the Investor Parties, the lesser of (i) fifty percent (50%) of the Proposed Securities (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice) or (ii) the percentage of the Proposed Securities equal to the aggregate Participation Portions of the Investor Parties (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice); provided, however, that, subject to compliance with the terms and conditions set forth in Section 7.1.5, the Company shall not be required to offer to issue or sell to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for the benefit of the Investor Parties), which notice shall include a description of the Proposed Securities (including the number thereof) that would require stockholder approval in respect of the issuance thereof). 7.1.2 The Investor Parties will have the option, exercisable by written notice delivered by the Investors (on behalf of the Investor Parties) to the Company, to accept the Company’s offer and commit to purchase any or all of the Proposed Securities offered to be sold by the Company to such Investor Parties, which notice must be given prior to the later of (x) five (5) Business Days after receipt of such notice from the Company and (y) two (2) Business Days prior to the proposed issuance date set forth in the Pre-Emptive Right Notice (the “Pre-Emptive Right Lapse Time”). If the Company offers two (2) or more securities as a unit to all other participants in the offering, the Investor Parties will be given the same choice as provided to other participants in the offering. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by any such Investor Party may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Authority or (ii) permit one or more Investor Parties to receive proceeds from calling capital pursuant to commitments made by its (or its affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor Parties have not elected to purchase during the 60 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Investor Parties in the Pre-Emptive Right Notice delivered in accordance with Section 7.1.1. Any Proposed Securities offered or sold by the Company after such 60-day period must be reoffered to issue or sell to the Investor Parties pursuant to this Section 7.1; provided that, subject to compliance with the terms and conditions set forth in Section 7.1.5, the Company shall not be required to reoffer to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as to any subsequent proposed issuance. 7.1.4 In the case of an issuance subject to this Section 7.1 for consideration in whole or in part other than cash, including securities acquired in exchange therefor, the consideration other than cash shall be deemed to be the “Fair Market Value” (as defined in the Certificate of Designation) thereof. 7.1.5 In the event that the Company is not required to offer or reoffer to an Investor Party any Proposed Securities because such issuance would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered to the Company in writing at or before the Pre-Emptive Right Lapse Time, at the Investors’ election (acting in its sole discretion): (a) consider and discuss in good faith modifications proposed by the Investors to the terms and conditions of such portion of the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (b) take such actions as may be reasonably necessary to seek stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties, including without limitation, calling a special meeting of the Company’s stockholders to vote on (and including in the proxy statement related thereto) a proposal to authorize and approve potential equity issuances by the Company upon exercise of the Investor Parties’ rights pursuant to Section 7 which occur prior to the seven-year anniversary of such special meeting and a recommendation by the Company Board in favor of the approval of such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders).

Right to Participate in Certain Sales of Additional Securities. 7.1.1 For so long as The Company will not offer, sell or issue (a) any shares of Registrable capital stock of the Company, (b) Securities remain outstanding, convertible into or exchangeable for capital stock of the Company agrees that it will not or (and that it will cause its subsidiaries not toc) sell Options, Warrants or issue any shares other rights to purchase capital stock of Capital Stock or Equity the Company (collectively, “New Securities, in each case, ”) unless (x) the Company first submits a written notice to each Preferred Stockholder (a collectively, the “Pre-Emptive Right NoticeOfferees”) identifying the terms of the proposed offer, sale or issuance (including price, number and aggregate principal amount of Securities being offered, sold or issued), and offering to each of the Offerees the opportunity to purchase its Diluted Pro Rata Allotment of the New Securities (subject to increase for over-allotment if some Offerees do not fully exercise their rights) on terms and conditions contained in such notice. The Company will keep such offer open and irrevocable for a period of 30 days following receipt by the Offerees of such written notice, and the Offerees will have the right to elect to purchase the New Securities so offered by giving written notice thereof to the Investors Company within such 30 day period. Such notice will indicate the maximum number of New Securities which the Offerees would purchase (for including such number in the benefit case that one or more other Offerees do not elect to purchase any of the Investor Parties) setting forth in reasonable detail (A) New Securities to which such other Offerees are entitled to purchase). In the designation and all event that any Offeree does not elect to purchase its Diluted Pro Rata Allotment of the terms and provisions New Securities, then each other Offeree who has elected to purchase a number of New Securities in excess of its Diluted Pro Rata Allotment (an “Overallotment Offeree”) will have the securities proposed right to be issued purchase those New Securities which such Offeree elected not to purchase (the “Proposed Excess New Securities”), including, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed sale of such Proposed Securities; and (C) the amount of such Proposed Excess New Securities proposed to be issued; provided, that following the delivery of such notice, the Company shall deliver to the Investors (for the benefit of the Investor Parties) any such information the Investors may reasonably request in order to evaluate the proposed issuance, (y) it offers to issue and sell to the Investor Parties, on such terms as the Proposed Securities are issued and upon full payment by the Investor Parties, the lesser of (i) fifty percent (50%) of the Proposed Securities (to will be allocated among all Overallotment Offerees pro rata (up to the Investor Parties number of New Securities specified in proportion such Offeree’s notice) based on the number of Securities held (or, in the case of an Investor, based on the number of Securities held and the number of Securities that are issuable pursuant to their respective levels of ownership of Series B Shares as the conversion of the date Convertible Notes and the Series C Preferred Stock) by such Overallotment Offerees immediately prior to receipt of such written notice from the Pre-Emptive Rights Notice) or (ii) the percentage of the Proposed Securities equal to the aggregate Participation Portions of the Investor Parties (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice)Company; provided, however, thatthat no such Offeree will be required to purchase more than the number of New Securities specified in its election notice. Any New Securities so offered which are not purchased by the Offerees pursuant to such offer may be sold by the Company at any time within 120 days following the termination of the above referenced 30 day period, subject to compliance with but only on the terms and conditions set forth in Section 7.1.5the initial offer. The Company will not offer, the Company shall not be required to offer to sell or issue any New Securities after such 120 day period or sell to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for the benefit of the Investor Parties), which notice shall include a description of the Proposed Securities (including the number thereof) that would require stockholder approval in respect of the issuance thereof). 7.1.2 The Investor Parties will have the option, exercisable by written notice delivered by the Investors (on behalf of the Investor Parties) to the Company, to accept the Company’s offer terms and commit to purchase any or all of the Proposed Securities offered to be sold by the Company to such Investor Parties, which notice must be given prior to the later of (x) five (5) Business Days after receipt of such notice from the Company and (y) two (2) Business Days prior to the proposed issuance date conditions other than those set forth in the Pre-Emptive Right Notice (the “Pre-Emptive Right Lapse Time”). If the Company offers two (2) or more securities as a unit to all other participants in the offering, the Investor Parties will be given the same choice as provided to other participants in the offering. The closing of the exercise of such subscription right shall take place simultaneously original offer notice without renewed compliance with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by any such Investor Party may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Authority or (ii) permit one or more Investor Parties to receive proceeds from calling capital pursuant to commitments made by its (or its affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor Parties have not elected to purchase during the 60 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Investor Parties in the Pre-Emptive Right Notice delivered in accordance with Section 7.1.1. Any Proposed Securities offered or sold by the Company after such 60-day period must be reoffered to issue or sell to the Investor Parties pursuant to this Section 7.1; provided that, subject to compliance with the terms and conditions set forth in Section 7.1.5, the Company shall not be required to reoffer to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained4.1. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as to any subsequent proposed issuance. 7.1.4 In the case of an issuance subject to this Section 7.1 for consideration in whole or in part other than cash, including securities acquired in exchange therefor, the consideration other than cash shall be deemed to be the “Fair Market Value” (as defined in the Certificate of Designation) thereof. 7.1.5 In the event that the Company is not required to offer or reoffer to an Investor Party any Proposed Securities because such issuance would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered to the Company in writing at or before the Pre-Emptive Right Lapse Time, at the Investors’ election (acting in its sole discretion): (a) consider and discuss in good faith modifications proposed by the Investors to the terms and conditions of such portion of the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (b) take such actions as may be reasonably necessary to seek stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties, including without limitation, calling a special meeting of the Company’s stockholders to vote on (and including in the proxy statement related thereto) a proposal to authorize and approve potential equity issuances by the Company upon exercise of the Investor Parties’ rights pursuant to Section 7 which occur prior to the seven-year anniversary of such special meeting and a recommendation by the Company Board in favor of the approval of such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders).

Right to Participate in Certain Sales of Additional Securities. 7.1.1 For so long as any shares of Registrable Securities remain outstanding, the The Company agrees that it will not (and that it will cause its subsidiaries not to) sell or issue (i) any shares of Capital Stock capital stock of the Company, (ii) securities convertible into or Equity Securitiesexchangeable for capital stock of the Company or (iii) options, in each casewarrants or rights carrying any rights to purchase capital stock of the Company, unless (x) the Company first submits a written notice offer to each Investor (a “Pre-Emptive Right Notice”) to collectively, the Investors (for the benefit of the Investor Parties) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”"Offerees"), including, to identifying the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed sale of such Proposed Securities; and (C) the including price, number or aggregate principal amount of such Proposed Securities proposed to be issued; providedsecurities and all other material terms), that following the delivery of such notice, the Company shall deliver to the Investors (for the benefit of the Investor Parties) any such information the Investors may reasonably request in order to evaluate the proposed issuance, (y) it and offers to issue and sell each Offeree the opportunity to the Investor Parties, on such terms purchase its Pro Rata Allotment (as the Proposed Securities are issued and upon full payment by the Investor Parties, the lesser of (i) fifty percent (50%hereinafter defined) of the Proposed Securities securities (subject to increase for over-allotment if some Offerees do not fully exercise their rights) on terms and conditions, including price, not less favorable than those on which the Company proposes to sell such securities to a third party or parties. Each Offeree's "Pro Rata Allotment" of such securities shall be allocated among based on the Investor Parties ratio (as determined in proportion accordance with Section 1.3 hereof) which the Shares then owned by it bears to their respective levels all of ownership the then issued and outstanding shares of Series B Shares Common Stock (including for this purpose any shares of Common Stock issuable upon conversion of the Preferred Stock) as of the date of such written offer. The Company's offer pursuant to this Section 3.1 shall remain open and irrevocable for a period of thirty (30) calendar days, and the Prerecipients of such offer shall elect to purchase by giving written notice thereof to the Company within such 30-Emptive Rights Notice) day period, including therein the maximum number of shares of capital stock or (ii) the percentage other securities of the Proposed Securities equal Company which the Offeree would purchase if other Offerees do not elect to purchase, with the aggregate Participation Portions rights of electing Offerees to purchase such additional shares to be based upon the relative holdings of Shares of the Investor Parties (electing Offerees in the case of over-subscription. Any securities so offered which are not purchased pursuant to such offer may be allocated among sold by the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice); providedCompany, however, that, subject to compliance with but only on the terms and conditions set forth in Section 7.1.5the initial offer, at any time within 120 calendar days following the Company shall termination of the above-referenced 30-day period but may not be required sold to offer to issue any other person or sell to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for the benefit of the Investor Parties), which notice shall include a description of the Proposed Securities (including the number thereof) that would require stockholder approval in respect of the issuance thereof). 7.1.2 The Investor Parties will have the option, exercisable by written notice delivered by the Investors (on behalf of the Investor Parties) to the Company, to accept the Company’s offer and commit to purchase any or all of the Proposed Securities offered to be sold by the Company to such Investor Parties, which notice must be given prior to the later of (x) five (5) Business Days after receipt of such notice from the Company and (y) two (2) Business Days prior to the proposed issuance date set forth in the Pre-Emptive Right Notice (the “Pre-Emptive Right Lapse Time”). If the Company offers two (2) or more securities as a unit to all other participants in the offering, the Investor Parties will be given the same choice as provided to other participants in the offering. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by any such Investor Party may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Authority or (ii) permit one or more Investor Parties to receive proceeds from calling capital pursuant to commitments made by its (or its affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor Parties have not elected to purchase during the 60 days following such expiration on terms and conditions no conditions, including price, that are more favorable to the purchasers thereof purchaser than those offered to the Investor Parties set forth in the Pre-Emptive Right Notice delivered in accordance with Section 7.1.1. Any Proposed Securities offered such offer or sold by the Company after such 60120-day period must be reoffered to issue or sell to the Investor Parties pursuant to without renewed compliance with this Section 7.1; provided that, subject to compliance with 3.1. Notwithstanding the terms and conditions set forth in Section 7.1.5foregoing, the Company right to purchase granted under this Article III shall not be required inapplicable with respect to reoffer to the Investor Parties the portion any (i) of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as to any subsequent proposed issuance. 7.1.4 In the case of an issuance subject to this Section 7.1 for consideration in whole or in part other than cash, including securities acquired in exchange therefor, the consideration other than cash shall be deemed to be the “Fair Market Value” Excluded Shares (as defined in the Certificate Company's Amended and Restated Articles of DesignationIncorporation), (ii) thereof. 7.1.5 In any shares of Common Stock underlying the option previously granted to Michxxx Xxxxxxxxx (xx appropriately adjusted for any stock split, combination, reorganization, recapitalization, reclassification, stock distribution, stock dividend or similar event), (iii) securities issued as a result of any stock split, stock dividend, reclassification or reorganization or similar event that with respect to the Company is not required to offer Common Stock, (iv) shares issued as consideration for any acquisition approved by the Board of Directors, or reoffer to an Investor Party any Proposed Securities because such issuance would require the Company to obtain stockholder approval in respect (v) shares of Common Stock issued upon conversion of the issuance of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered to the Company in writing at or before the Pre-Emptive Right Lapse Time, at the Investors’ election (acting in its sole discretion): (a) consider and discuss in good faith modifications proposed by the Investors to the terms and conditions of such portion of the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (b) take such actions as may be reasonably necessary to seek stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties, including without limitation, calling a special meeting of the Company’s stockholders to vote on (and including in the proxy statement related thereto) a proposal to authorize and approve potential equity issuances by the Company upon exercise of the Investor Parties’ rights pursuant to Section 7 which occur prior to the seven-year anniversary of such special meeting and a recommendation by the Company Board in favor of the approval of such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders)Preferred Stock.

Right to Participate in Certain Sales of Additional Securities. 7.1.1 For so long as any shares of Registrable Securities remain outstanding, the The Company agrees that it will not (and that it will cause its subsidiaries not to) sell or issue any shares of Capital Stock capital stock of the Company, or Equity Securitiesother securities convertible into or exchangeable for capital stock of the Company, in each caseor options, warrants or rights carrying any rights to purchase capital stock of the Company unless (x) the Company first submits a written notice (a “Pre-Emptive Right Notice”) offer to the Investors (for identifying the benefit of the Investor Parties) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed sale of such Proposed Securities; and (C) the including price, number or aggregate principal amount of such Proposed Securities proposed securities and all other material terms), and offers to be issued; providedeach Investor the opportunity to purchase up to its Pro Rata Share (as hereinafter defined) of the securities (subject to increase for over-allotment if some Investors do not fully exercise their rights as provided below) on terms and conditions, that following the delivery of such noticeincluding price, the Company shall deliver not less favorable to the Investors than those on which the Company proposes to sell such securities to a third party or parties. Each Investor's "Pro Rata Share" of such securities shall be based on the ratio which the shares of Common Stock (for including shares issuable upon conversion of Preferred Stock) owned by it bears to all the benefit issued and outstanding shares of the Investor PartiesCommon Stock (including shares issuable upon conversion of Preferred Stock) any such information the Investors may reasonably request calculated in order to evaluate the proposed issuance, (y) it offers to issue and sell each case on a fully-diluted basis giving effect to the Investor Partiesconversion of convertible securities and assuming the exercise of all outstanding vested options, on such terms as the Proposed Securities are issued and upon full payment by the Investor Parties, the lesser of (i) fifty percent (50%) of the Proposed Securities (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares each case as of the date of such written offer. The Company's offer to the PreInvestors shall remain open and irrevocable for a period of 30 days, and Investors shall elect to purchase by giving written notice thereof to the Company within such thirty-Emptive Rights Noticeday period including therein the maximum number of shares or other securities such Investor would purchase if other Investors do not elect to purchase, with the rights of electing Investors to purchase such additional shares to be based upon the relative holdings of Common Stock (including shares issuable upon conversion of Preferred Stock) or (ii) the percentage of the Proposed Securities equal electing Investors in the case of over-subscription, provided that in the event any Investor within an Investor Group does not elect to purchase its Pro Rata Share, the aggregate Participation Portions other members of such Investor Group may elect to purchase such non-electing Investor's Pro Rata Share or portion thereof not so elected based on the relevant holdings of the participating Investors within such Investor Parties (Group before any such shares are allocated to participating Investors within any other Investor Group. Any securities so offered which are not purchased pursuant to such offer may be allocated among sold by the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice); provided, however, that, subject to compliance with Company but only on the terms and conditions set forth in Section 7.1.5the initial offer to the Investors, at any time within 120 days following the Company shall termination of the above-referenced 30-day period but may not be required sold to offer to issue any other person or sell to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for the benefit of the Investor Parties), which notice shall include a description of the Proposed Securities (including the number thereof) that would require stockholder approval in respect of the issuance thereof). 7.1.2 The Investor Parties will have the option, exercisable by written notice delivered by the Investors (on behalf of the Investor Parties) to the Company, to accept the Company’s offer and commit to purchase any or all of the Proposed Securities offered to be sold by the Company to such Investor Parties, which notice must be given prior to the later of (x) five (5) Business Days after receipt of such notice from the Company and (y) two (2) Business Days prior to the proposed issuance date set forth in the Pre-Emptive Right Notice (the “Pre-Emptive Right Lapse Time”). If the Company offers two (2) or more securities as a unit to all other participants in the offering, the Investor Parties will be given the same choice as provided to other participants in the offering. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by any such Investor Party may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Authority or (ii) permit one or more Investor Parties to receive proceeds from calling capital pursuant to commitments made by its (or its affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor Parties have not elected to purchase during the 60 days following such expiration on terms and conditions no conditions, including price, that are more favorable to the purchasers thereof purchaser than those offered set forth in such offer or after such 120-day period without renewed compliance with this Section 3.1. Notwithstanding the foregoing, the right to purchase granted under this Article III shall be inapplicable with respect to any issuance or proposed issuance by the Investor Parties Company of (i) warrants or options, or stock issued on the exercise thereof in connection with any financing transaction, (ii) securities issued in connection with the Pre-Emptive Right Notice delivered acquisition of another corporation by the Company or any Affiliate of the Company, whether by merger, purchase of stock, purchase of all or substantially all of the assets of such corporation, or otherwise, (iii) Common Stock issued, or options or rights to purchase Common Stock granted, to employees, consultants, officers, directors, advisors or independent contractors of the Company or of any Affiliate of the Company, (iv) securities issued as a result of any stock split, stock dividend, reclassification or reorganization of the Company's stock or (v) Common Stock or Redeemable Preferred Stock issued upon conversion of Convertible Participating Preferred Stock in accordance with Section 7.1.1. Any Proposed Securities offered or sold by the Company after such 60-day period must be reoffered to issue or sell to the Investor Parties pursuant to this Section 7.1; provided that, subject to compliance with the terms and conditions set forth in Section 7.1.5, the Company shall not be required to reoffer to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as to any subsequent proposed issuance. 7.1.4 In the case of an issuance subject to this Section 7.1 for consideration in whole or in part other than cash, including securities acquired in exchange therefor, the consideration other than cash shall be deemed to be the “Fair Market Value” (as defined in the Certificate of Designation) thereof. 7.1.5 In the event that the Company is not required to offer or reoffer to an Investor Party any Proposed Securities because such issuance would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered to the Company in writing at or before the Pre-Emptive Right Lapse Time, at the Investors’ election (acting in its sole discretion): (a) consider and discuss in good faith modifications proposed by the Investors to the terms and conditions of such portion of the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (b) take such actions as may be reasonably necessary to seek stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties, including without limitation, calling a special meeting of the Company’s stockholders to vote on ('s Amended and including in the proxy statement related thereto) a proposal to authorize and approve potential equity issuances by the Company upon exercise Restated Certificate of the Investor Parties’ rights pursuant to Section 7 which occur prior to the seven-year anniversary of such special meeting and a recommendation by the Company Board in favor of the approval of such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders)Incorporation.

Right to Participate in Certain Sales of Additional Securities. 7.1.1 For so long as any shares of Registrable Securities remain outstanding, the (a) The Company agrees that it will not (and that it will cause its subsidiaries not to) sell or issue any shares of Capital Stock capital stock of the Company, or Equity other securities convertible into or exchangeable for capital stock of the Company, or options, warrants or rights carrying any rights to purchase capital stock of the Company (the "Offered Securities, in each case, ") unless (x) the Company first submits a written notice (a “Pre-Emptive Right the "Preemptive Rights Notice”") to the Investors (for Holder identifying the benefit of the Investor Parties) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed sale of such Proposed Securities; and (C) the including price, number or aggregate principal amount of such Proposed Securities proposed to be issued; providedsecurities and all other material terms), that following the delivery of such notice, the Company shall deliver and offers to the Investors Holder the opportunity to purchase its Pro Rata Allotment (for the benefit of the Investor Parties) any such information the Investors may reasonably request in order to evaluate the proposed issuance, (y) it offers to issue and sell to the Investor Parties, on such terms as the Proposed Securities are issued and upon full payment by the Investor Parties, the lesser of (i) fifty percent (50%hereinafter defined) of the Proposed Securities securities on terms and conditions, including price, not less favorable than those on which the Company proposes to sell such securities to a third party or parties. The Company's offer to the Holder shall remain open and irrevocable for a period of thirty (30) days during which time the Holder may accept such offer by written notice to the Company setting forth the maximum number of shares or other securities to be allocated among purchased by the Investor Parties in proportion Holder. Any securities so offered which are not purchased by the Holder pursuant to their respective levels of ownership of Series B Shares as of such offer may be sold by the date of the Pre-Emptive Rights Notice) or (ii) the percentage of the Proposed Securities equal to the aggregate Participation Portions of the Investor Parties (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice); providedCompany, however, that, subject to compliance with but only on the terms and conditions set forth in Section 7.1.5, the Company shall not be required to initial offer to issue or sell to the Investor Parties Holder at any time within 120 days following the portion termination of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for the benefit of the Investor Parties), which notice shall include a description of the Proposed Securities (including the number thereof) that would require stockholder approval in respect of the issuance thereof). 7.1.2 The Investor Parties will have the option, exercisable by written notice delivered by the Investors (on behalf of the Investor Parties) to the Company, to accept the Company’s offer and commit to purchase any or all of the Proposed Securities offered to be sold by the Company to such Investor Parties, which notice must be given prior to the later of (x) five (5) Business Days after receipt of such notice from the Company and (y) two (2) Business Days prior to the proposed issuance date set forth in the Preabove-Emptive Right Notice (the “Prereferenced 30-Emptive Right Lapse Time”). If the Company offers two (2) or more securities as a unit to all other participants in the offering, the Investor Parties will be given the same choice as provided to other participants in the offeringday period. The closing of the exercise sale of such subscription right the securities to the Holder shall take place simultaneously with be subject to the closing of the sale of the Proposed remaining Offered Securities. For purposes of this Agreement, the Holder's Pro Rata Allotment with respect to Offered Securities giving rise shall be equal to the total number of such subscription right; providedOffered Securities proposed to be issued by the Company multiplied by a fraction, howeverthe numerator of which is the number of Shares (determined on an as-converted basis into the Company's Common Stock) owned by the Holder immediately prior to the issuance of such Offered Securities, that and the closing denominator of any purchase by any which is the total number of Shares of Common Stock outstanding immediately prior to the issuance of such Investor Party may be extended beyond Offered Securities. (b) Notwithstanding the closing of foregoing, the sale of the Proposed Securities giving rise to such preemptive right to purchase shall be inapplicable with respect to any issuance or proposed issuance by the extent necessary to Company of (i) obtain required approvals from shares of Common Stock issued to officers, directors, employees or consultants of the Company pursuant to any Governmental Authority Company incentive plan or upon the exercise of options or other rights issued to such officers, directors, employees or consultants pursuant to any Company incentive plan or any successor plan thereto, (ii) permit one Common Stock issued upon conversion of any preferred stock or more Investor Parties to receive proceeds from calling capital pursuant to commitments made convertible debentures issued by its (or its affiliated investment funds’) limited partners. Upon the expiration Company, and existing as of the offering period described abovedate of this Agreement, (iii) securities as a result of any stock split, stock dividend, reclassification or reorganization of the Company will be free to sell such Proposed Securities that Company's stock, and (iv) Common Stock issued upon conversion of any options or warrants existing as of the Investor Parties have not elected to purchase during date of this Agreement. (c) The rights of the 60 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Investor Parties in the Pre-Emptive Right Notice delivered in accordance with Section 7.1.1. Any Proposed Securities offered or sold by the Company after such 60-day period must be reoffered to issue or sell to the Investor Parties pursuant to this Section 7.1; provided that, subject to compliance with the terms and conditions Holder set forth in this Section 7.1.5, 13 are transferable to each transferee of Shares of capital stock of the Company shall not be required to reoffer to the Investor Parties the portion hereunder. Each such subsequent holder of the Proposed Securities that would require the Company to obtain stockholder approval such Shares must consent in respect of the issuance of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as to any subsequent proposed issuance. 7.1.4 In the case of an issuance subject to this Section 7.1 for consideration in whole or in part other than cash, including securities acquired in exchange therefor, the consideration other than cash shall be deemed writing to be the “Fair Market Value” (as defined in the Certificate of Designation) thereof. 7.1.5 In the event that the Company is not required to offer or reoffer to an Investor Party any Proposed Securities because such issuance would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered to the Company in writing at or before the Pre-Emptive Right Lapse Time, at the Investors’ election (acting in its sole discretion): (a) consider and discuss in good faith modifications proposed bound by the Investors to the terms and conditions of such portion of this Agreement in order to acquire the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (b) take such actions as may be reasonably necessary to seek stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties, including without limitation, calling a special meeting of the Company’s stockholders to vote on (and including in the proxy statement related thereto) a proposal to authorize and approve potential equity issuances by the Company upon exercise of the Investor Parties’ rights pursuant to Section 7 which occur prior to the seven-year anniversary of such special meeting and a recommendation by the Company Board in favor of the approval of such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders)granted hereunder.

Right to Participate in Certain Sales of Additional Securities. 7.1.1 For With -------------------------------------------------------------- respect to the Investors, so long as any shares the Investors continue to hold an aggregate number of Registrable Securities remain outstandingConvertible Preferred Shares and Conversion Shares equal to at least 50% of the Convertible Preferred Shares (subject to adjustments for stock splits, stock dividends and the like), and with respect to the Redeeming Stockholders, so long as such Redeeming Stockholders continue to hold in the aggregate at least 50% of the Common Stock held at the date hereof (subject to adjustments for stock splits, stock dividends and the like) the Company agrees that it will not (and that it will cause its subsidiaries not to) sell or issue any shares of Capital Stock capital stock of the Company, or Equity Securitiesother securities convertible into or exchangeable for capital stock of the Company, in each caseor options, warrants or rights carrying any rights to purchase capital stock of the Company unless (x) the Company first submits a written notice (a “Pre-Emptive Right Notice”) offer to each of the Investors (for and each Redeeming Stockholder identifying the benefit of the Investor Parties) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed sale (including price, number or aggregate principal amount of securities and all other material terms) (the "Offer"), and offers to each such Investor and each Redeeming Stockholder the opportunity to purchase its Pro Rata Share (as hereinafter defined) of such Proposed Securities; securities (subject to increase for over-allotment if some Investors or Redeeming Stockholder do not fully exercise their rights) on terms and conditions, including price, not less favorable to the Investors and the Redeeming Stockholders than those on which the Company proposes to sell such securities to a third party or parties. For the purposes of this Agreement, each Investor's or Redeeming Stockholder's "Pro Rata Share" of such securities shall be based upon the ratio which (CA) the amount number of shares of Common Stock (which shall include shares of Common Stock issuable upon exercise or conversion of securities then outstanding) owned by it or him, as the case may be, bears to (B) the total of all the issued and outstanding shares of Common Stock (which shall include shares of Common Stock issuable upon exercise or conversion of securities then outstanding). The Company's offer shall remain open and irrevocable for a period of 7 days, and Investors and Redeeming Stockholders who elect to purchase, by written notice to the Company, within such Proposed Securities proposed period shall have the first right to be issued; providedtake up and purchase any shares or other securities which other Investors and Redeeming Stockholders do not elect to purchase, that following based on the relative holdings of the electing purchasers. The closing of any such Offer shall occur no sooner than 30 days after the delivery of such notice, Offer. Any securities so offered which are not purchased pursuant to such offer may be sold by the Company shall deliver to the Investors (for the benefit of the Investor Parties) any such information the Investors may reasonably request in order to evaluate the proposed issuance, (y) it offers to issue and sell to the Investor Parties, but only on such terms as the Proposed Securities are issued and upon full payment by the Investor Parties, the lesser of (i) fifty percent (50%) of the Proposed Securities (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice) or (ii) the percentage of the Proposed Securities equal to the aggregate Participation Portions of the Investor Parties (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice); provided, however, that, subject to compliance with the terms and conditions set forth in Section 7.1.5, the Company shall not be required to initial offer to issue or sell to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for and Redeeming Stockholders, at any time within 120 days following the benefit termination of the Investor Parties), which notice shall include a description of the Proposed Securities (including the number thereof) that would require stockholder approval in respect of the issuance thereof). 7.1.2 The Investor Parties will have the option, exercisable by written notice delivered by the Investors (on behalf of the Investor Parties) to the Company, to accept the Company’s offer and commit to purchase any or all of the Proposed Securities offered to above-referenced 30-day period but may not be sold by the Company to such Investor Parties, which notice must be given prior to the later of (x) five (5) Business Days after receipt of such notice from the Company and (y) two (2) Business Days prior to the proposed issuance date set forth in the Pre-Emptive Right Notice (the “Pre-Emptive Right Lapse Time”). If the Company offers two (2) any other person or more securities as a unit to all other participants in the offering, the Investor Parties will be given the same choice as provided to other participants in the offering. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by any such Investor Party may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Authority or (ii) permit one or more Investor Parties to receive proceeds from calling capital pursuant to commitments made by its (or its affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor Parties have not elected to purchase during the 60 days following such expiration on terms and conditions no conditions, including price, that are more favorable to the purchasers thereof purchaser than those offered to the Investor Parties set forth in the Pre-Emptive Right Notice delivered in accordance with Section 7.1.1. Any Proposed Securities offered such offer or sold by the Company after such 60120-day period must be reoffered to without renewed compliance with this Section 5.1. Notwithstanding the foregoing, the Company may (i) issue or sell shares of Common Stock pursuant to the Investor Parties Warrant Agreements and pursuant to this Section 7.1; provided that, subject to compliance with Warrants and stock options existing on the terms and conditions date hereof as set forth in Section 7.1.5, the Company shall not be required to reoffer to the Investor Parties the portion 5.1 of the Proposed Securities that would require Disclosure Schedule; (ii) issue shares of Common Stock and options (and the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as to any subsequent proposed issuance. 7.1.4 In the case of an issuance subject to this Section 7.1 for consideration in whole or in part other than cash, including securities acquired in exchange therefor, the consideration other than cash shall be deemed Common Stock to be the “Fair Market Value” (as defined issued upon exercise thereof) included in the Certificate of Designation) thereof. 7.1.5 In the event that the Company is not required to offer Stock Option Pool or reoffer to an Investor Party any Proposed Securities because such issuance would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered to the Company in writing at or before the Pre-Emptive Right Lapse Time, at the Investors’ election (acting in its sole discretion): (a) consider and discuss in good faith modifications proposed otherwise approved by the Investors to the terms and conditions Board of such portion of the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (b) take such actions as may be reasonably necessary to seek stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties, including without limitation, calling a special meeting Directors of the Company’s stockholders ; (iii) issue warrants to vote on (and including purchase up to 733,000 shares of Common Stock pursuant to warrants to be issued in connection with the proxy statement related thereto) a proposal to authorize and approve potential equity issuances placement by the Company of subordinated indebtedness and the shares of Common Stock issued upon exercise of such warrants; (iv) up to 100,000 shares of Convertible Preferred Stock to be issued in connection with the Investor Parties’ rights pursuant to Section 7 which occur prior to the seven-year anniversary of such special meeting and a recommendation placement by the Company Board in favor of subordinated indebtedness and shares of Common Stock issuable upon conversion thereof; and (v) issue Conversion Shares upon the conversion of the approval Convertible Preferred Shares, and the other provisions of this Section 5.1 shall not apply with respect to such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders)issuances.

Right to Participate in Certain Sales of Additional Securities. 7.1.1 For so long as If at any shares of Registrable time the Company intends to issue any (i) Equity Interests, (ii) securities convertible into or exchangeable for Equity Interests, or (iii) options, warrants or rights carrying any rights to purchase Equity Interests, other than Excluded Securities remain outstanding(collectively, the Company agrees that "OFFERED SECURITIES"), it will not (and that it will cause its subsidiaries not to) sell or issue any shares of Capital Stock or Equity Securities, in each case, unless (x) the Company first submits shall submit a written notice offer to each Mezzanine Investor (a “Pre-Emptive Right Notice”) to collectively, the Investors (for the benefit of the Investor Parties) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”"OFFEREES"), including, to identifying the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed issuance and sale of such Proposed Securities; and (C) the including price, number or aggregate principal amount of such Proposed the Offered Securities proposed and all other material terms), to be issuedpurchase its Pro Rata Allotment (as hereinafter defined) of the Offered Securities (subject to increase for over-subscription if some Offerees do not fully exercise their rights) on terms and conditions, including price, not less favorable to the Offerees than those on which the Company proposes to sell the Offered Securities to a third party or parties; provided, however, that following such Offeree agrees to purchase the delivery of Offered Securities and any other securities to be purchased in tandem therewith by the prospective purchaser. The Company's obligation to complete any such notice, the Company shall deliver issuance or sale is subject to the Investors (for the benefit receipt of all necessary Gaming Approvals. Each Offeree's "PRO RATA ALLOTMENT" of the Investor PartiesOffered Securities shall be based on the ratio (as determined in accordance with Section 1.2 hereof) any such information which the Investors may reasonably request in order Offered Securities then owned by it bears to evaluate all of the proposed issuance, (y) it offers to issue and sell to the Investor Parties, on such terms as the Proposed Securities are then issued and upon full payment by the Investor Parties, the lesser of (i) fifty percent (50%) of the Proposed outstanding Securities (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of such written offer. The Company's offer pursuant to this Section 4.1 shall remain open and irrevocable for a period of ten (10) Business Days, and the Prerecipients of such offer shall elect to purchase by giving written notice thereof to the Company within such 10-Emptive Rights Notice) or (ii) day period, including therein the percentage maximum number of Offered Securities of the Proposed Company which the Offeree would purchase if other Offerees do not elect to purchase, with the rights of electing Offerees to purchase such additional Offered Securities equal to be based upon the aggregate Participation Portions relative holdings of Securities of the Investor Parties (electing Offerees in the case of over-subscription. Any Offered Securities which are not purchased pursuant to such offer plus, at the Company's election, an equivalent number of securities so purchased by the Offerees may be allocated among sold by the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice); providedCompany, however, that, subject to compliance with but only on the terms and conditions set forth in Section 7.1.5the initial offer, at any time within ninety (90) days following the Company shall termination of the above-referenced 10-day period or any longer period of time as may be required by any Gaming Authorities but may not be required sold to offer to issue any other Person or sell to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for the benefit of the Investor Parties), which notice shall include a description of the Proposed Securities (including the number thereof) that would require stockholder approval in respect of the issuance thereof). 7.1.2 The Investor Parties will have the option, exercisable by written notice delivered by the Investors (on behalf of the Investor Parties) to the Company, to accept the Company’s offer and commit to purchase any or all of the Proposed Securities offered to be sold by the Company to such Investor Parties, which notice must be given prior to the later of (x) five (5) Business Days after receipt of such notice from the Company and (y) two (2) Business Days prior to the proposed issuance date set forth in the Pre-Emptive Right Notice (the “Pre-Emptive Right Lapse Time”). If the Company offers two (2) or more securities as a unit to all other participants in the offering, the Investor Parties will be given the same choice as provided to other participants in the offering. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by any such Investor Party may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Authority or (ii) permit one or more Investor Parties to receive proceeds from calling capital pursuant to commitments made by its (or its affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor Parties have not elected to purchase during the 60 days following such expiration on terms and conditions no conditions, including price, that are more favorable to the purchasers thereof purchaser than those offered to the Investor Parties set forth in the Pre-Emptive Right Notice delivered in accordance with Section 7.1.1. Any Proposed Securities offered such offer or sold by the Company after such 6090-day period must be reoffered to issue or sell to the Investor Parties pursuant to this Section 7.1; provided that, subject to compliance with the terms and conditions set forth in Section 7.1.5, the Company shall not be required to reoffer to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as to any subsequent proposed issuance. 7.1.4 In the case of an issuance subject to this Section 7.1 for consideration in whole or in part other than cash, including securities acquired in exchange therefor, the consideration other than cash shall be deemed to be the “Fair Market Value” (as defined in the Certificate of Designation) thereof. 7.1.5 In the event that the Company is not required to offer or reoffer to an Investor Party any Proposed Securities because such issuance would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered to the Company in writing at or before the Pre-Emptive Right Lapse Time, at the Investors’ election (acting in its sole discretion): (a) consider and discuss in good faith modifications proposed by the Investors to the terms and conditions of such portion of the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (b) take such actions longer period as may be reasonably necessary to seek stockholder approval in respect of the issuance of required by any Proposed Securities to the Investor Parties, including Gaming Authorities without limitation, calling a special meeting of the Company’s stockholders to vote on (and including in the proxy statement related thereto) a proposal to authorize and approve potential equity issuances by the Company upon exercise of the Investor Parties’ rights pursuant to renewed compliance with this Section 7 which occur prior to the seven-year anniversary of such special meeting and a recommendation by the Company Board in favor of the approval of such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders)4.1.

Right to Participate in Certain Sales of Additional Securities. 7.1.1 For so long as The Company agrees that, without the approval of a Majority Interest, it will not sell or issue (a) any shares of Registrable Securities remain outstandingcapital stock of the Company, (b) securities convertible into or exercisable or exchangeable for capital stock of the Company agrees that it will not or (and that it will cause its subsidiaries not toc) sell options, warrants or issue rights carrying any shares rights to purchase capital stock of Capital Stock or Equity Securities, in each casethe Company, unless (x) the Company first submits a written notice (a “Pre-Emptive Right Notice”) to each Investor identifying the Investors (for the benefit of the Investor Parties) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed sale (including price, number or aggregate principal amount of securities and all other material terms), and offers to each Investor the opportunity to purchase its Pro Rata Allotment (as hereinafter defined) of the securities (subject to increase for over-allotment if some Investors do not fully exercise their rights) on terms and conditions, including price, not less favorable than those on which the Company proposes to sell such securities to a third party or parties. Each Investor's Pro Rata Allotment of such Proposed Securities; and securities shall be based on the ratio which the number of Shares owned by such Investor (Cas determined in accordance with Section 1.3 hereof) the amount of such Proposed Securities proposed bears to be issued; provided, that following the delivery of such notice, the Company shall deliver to the Investors (for the benefit all of the Investor Parties) any such information the Investors may reasonably request in order to evaluate the proposed issuance, (y) it offers to issue and sell to the Investor Parties, on such terms as the Proposed Securities are issued and outstanding shares of Common Stock (including all shares of Common Stock then issuable upon full payment by the Investor Parties, the lesser conversion of (i) fifty percent the Preferred Stock, (50%ii) other securities of the Proposed Securities Company that are convertible into Common Stock pursuant to then exercisable rights of conversion, and (iii) options and warrants to be allocated among purchase Common Stock of the Investor Parties Company which are exercisable, in proportion to their respective levels of ownership of Series B Shares each case as of the date of such written offer.) The Company's offer pursuant to this Section 3.1 shall remain open and irrevocable for a period of thirty (30) calendar days following receipt by the PreInvestors of such written notice, and each Investor shall elect to purchase the securities so offered by giving written notice thereof to the Company within such 30-Emptive Rights Notice) day period, including therein the maximum number of shares of capital stock or (ii) the percentage other securities of the Proposed Securities equal Company which the Investor wishes to purchase, including the aggregate Participation Portions number of such shares it would purchase if one or more other Investors do not elect to purchase, with the rights of electing Investors to purchase such additional shares to be based upon the relative holdings of Shares of the Investor Parties (electing Investors in the case of over-subscription. Any securities so offered which are not purchased by the Investors pursuant to such offer may be allocated among sold by the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice); providedCompany, however, that, subject to compliance with but only on the terms and conditions set forth in Section 7.1.5the initial offer, at any time within 120 calendar days following the Company shall termination of the above-referenced 30-day period, but may not be required sold to offer to issue any other Person or sell on terms and conditions, including price, that are more favorable to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for the benefit of the Investor Parties), which notice shall include a description of the Proposed Securities (including the number thereof) that would require stockholder approval in respect of the issuance thereof). 7.1.2 The Investor Parties will have the option, exercisable by written notice delivered by the Investors (on behalf of the Investor Parties) to the Company, to accept the Company’s offer and commit to purchase any or all of the Proposed Securities offered to be sold by the Company to such Investor Parties, which notice must be given prior to the later of (x) five (5) Business Days after receipt of such notice from the Company and (y) two (2) Business Days prior to the proposed issuance date purchaser than those set forth in such offer or after such 120-day period without renewed compliance with this Section 3.1. In no event shall the Pre-Emptive Right Notice Investor's right to purchase pursuant to this Section 3.1 permit them to acquire more than 2% of the Company's issued and outstanding shares of common stock on a fully diluted basis at the time of such issuance (the “Pre-Emptive Right Lapse Time”). If the Company offers two (2including all convertible securities and outstanding option) or more securities as a unit to all other participants and in the offeringevent of purchases of pro-rata fractions as provided above would result in aggregate purchases in excess of such amount the amounts to be purchased by the Purchasers shall be reduced on a pro-rata basis. Notwithstanding the foregoing, the Investor Parties will be given the same choice as provided to other participants in the offering. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by any such Investor Party may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary purchase granted under this Article III shall be inapplicable with respect to (i) obtain required approvals the issuance of up to an aggregate of 3,750,000 shares of Common Stock (as appropriately adjusted for any stock split, combination, reorganization, recapitalization, reclassification, stock distribution, stock dividend or similar event) issued or issuable in connection with, or upon the exercise of, options or other awards granted or to be granted to employees, officers, directors or consultants of the Company pursuant to the Company's 2000 Incentive Compensation Plan, in connection with their service as directors of the Company, their employment by the Company or their retention as consultants by the Company, in each case authorized by the Board of Directors and issued pursuant to the Company's 2000 Incentive Compensation Plan or any other equity incentive plan approved by a Majority Interest ("Excluded Shares"), plus such number of Excluded Shares that are repurchased by the Company from such Persons after August 30, 2000 in accordance with the Company's Amended and Restated Certificate of Incorporation, pursuant to contractual rights held by the Company and at repurchase prices not exceeding the respective original purchase prices (appropriately adjusted to reflect the occurrence of any Governmental Authority or event described in Section A.7(b) of the Company's Amended and Restated Certificate of Incorporation) paid by such Persons to the Company therefore, (ii) permit one securities issued as a result of any stock split, stock dividend, reclassification or more Investor Parties reorganization or similar event with respect to receive proceeds from calling capital the Shares, (iii) securities issued pursuant to commitments made by its (or its affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor Parties have not elected to purchase during the 60 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Investor Parties in the Preanti-Emptive Right Notice delivered in accordance with Section 7.1.1. Any Proposed Securities offered or sold by the Company after such 60-day period must be reoffered to issue or sell to the Investor Parties pursuant to this Section 7.1; provided that, subject to compliance with the terms and conditions set forth in Section 7.1.5, the Company shall not be required to reoffer to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance dilution rights of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as to any subsequent proposed issuance. 7.1.4 In the case holder of an issuance subject to this Section 7.1 equity securities or securities exercisable for consideration in whole or in part other than cash, including exchangeable or convertible into equity securities acquired in exchange therefor, the consideration other than cash shall be deemed to be the “Fair Market Value” (as defined in the Certificate of Designation) thereof. 7.1.5 In the event that the Company is not required to offer or reoffer to an Investor Party any Proposed Securities because such issuance would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered to the Company in writing at or before the Pre-Emptive Right Lapse Time, at the Investors’ election (acting in its sole discretion): (a) consider and discuss in good faith modifications proposed by the Investors to the terms and conditions of such portion of the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (b) take such actions as may be reasonably necessary to seek stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties, including without limitation, calling a special meeting of the Company’s stockholders ; (iv) securities issued pursuant to vote on the closing of a Qualified Public Offering; (and including v) securities issued prior to August 30, 2001 solely in connection with a strategic alliance or other corporate partnering transaction; (vi) securities issued in exchange for the proxy statement related theretostock or assets of another company in connection with the acquisition of or merger into such company; provided, that such actions shall have been approved by a majority of the members of the Board of Directors, which approval shall include that of the Series B Director Designee; (vii) a proposal warrants to authorize and approve potential equity issuances by the Company purchase Common Stock or Convertible Preferred Stock outstanding as of August 30, 2000; (viii) ) shares of Common Stock issued upon exercise of the Investor Parties’ rights pursuant to Section 7 which occur prior to Warrants; and (ix) shares of Common Stock issued upon conversion of, or as a dividend on, the seven-year anniversary Convertible Preferred Stock and the Series A Convertible Preferred Stock, par value $.0001, of such special meeting and a recommendation by the Company Board in favor (the "Series A Preferred"). For purposes of this paragraph, the term Common Stock shall include all common stock of the approval of such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders)Company.

Right to Participate in Certain Sales of Additional Securities. 7.1.1 For so long as (a) The Company will not offer, sell or issue (i) any shares of Registrable Securities remain outstandingcapital stock of the Company, (ii) securities convertible into or exchangeable for capital stock of the Company, or (iii) options, warrants or other rights to purchase capital stock of the Company agrees that it will not (and that it will cause its subsidiaries not tocollectively, "NEW SECURITIES") sell or issue any shares of Capital Stock or Equity Securities, in each case, unless (x) the Company first submits a written notice offer to each Stockholder (a “Pre-Emptive Right Notice”) to the Investors (collectively for the benefit purposes of the Investor Parties) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, to the extent applicablethis Article III, the voting powers, preferences and relative participating, optional or other special rights, and "OFFEREES") identifying the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed sale (including price, number and aggregate principal amount of securities being offered), and offers to each of the Offerees the opportunity to purchase its Pro Rata Allotment of the New Securities (subject to increase for over-allotment if some Offerees do not fully exercise their rights) on terms and conditions contained in such notice. The Company will keep such offer open and irrevocable for a period of 10 Business days following receipt by the Offerees of such Proposed Securities; and (C) the amount of such Proposed Securities proposed to be issued; provided, that following the delivery of such written notice, and the Offerees will have the right to elect to purchase the New Securities so offered by giving written notice thereof to the Company shall deliver within such 10 Business day-period. Such notice will indicate the maximum number of New Securities which the Offerees would purchase if one or more other Offerees do not elect to the Investors (for the benefit purchase any of the Investor PartiesNew Securities to which it is entitled to purchase. In the event that any Offeree does not elect to purchase its Pro Rata Allotment, then each Offeree who has elected to purchase a number of New Securities in excess of its Pro Rata Allotment (an "OVERALLOTMENT OFFEREE") any will have the right to purchase those New Securities which such information the Investors may reasonably request in order Offeree elected not to evaluate the proposed issuancepurchase, (y) it offers to issue and sell to the Investor Parties, on such terms as the Proposed which New Securities are issued and upon full payment by the Investor Parties, the lesser of (i) fifty percent (50%) of the Proposed Securities (to will be allocated among all Overallotment Offerees pro rata based on the Investor Parties in proportion to their respective levels number of ownership issued and outstanding shares of Series B Shares as of the date of the Pre-Emptive Rights Notice) or (ii) the percentage of the Proposed Securities equal Common Stock held by such Overallotment Offerees immediately prior to the aggregate Participation Portions commencement of the Investor Parties (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice)such Offer; provided, however, that, subject to compliance with the terms and conditions set forth in Section 7.1.5, the Company shall not PROVIDED that no Offeree will be required to offer to issue or sell to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for the benefit of the Investor Parties), which notice shall include a description of the Proposed Securities (including purchase more than the number thereof) that would require stockholder approval of New Securities specified in respect of the issuance thereof). 7.1.2 The Investor Parties will have the option, exercisable by written notice delivered its election notice. Any New Securities so offered which are not purchased by the Investors (on behalf of the Investor Parties) Offerees pursuant to the Company, to accept the Company’s such offer and commit to purchase any or all of the Proposed Securities offered to may be sold by the Company to such Investor Parties, which notice must be given prior to at any time within 180 calendar days following the later of (x) five (5) Business Days after receipt of such notice from the Company and (y) two (2) Business Days prior to the proposed issuance date set forth in the Pre-Emptive Right Notice (the “Pre-Emptive Right Lapse Time”). If the Company offers two (2) or more securities as a unit to all other participants in the offering, the Investor Parties will be given the same choice as provided to other participants in the offering. The closing termination of the exercise of such subscription right shall take place simultaneously with above-referenced ten Business Day-period, but only on the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by any such Investor Party may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Authority or (ii) permit one or more Investor Parties to receive proceeds from calling capital pursuant to commitments made by its (or its affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor Parties have not elected to purchase during the 60 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered set forth in the initial offer. The Company will not offer, sell or issue any New Securities after such 180 calendar-day period or on terms and conditions more favorable to the Investor Parties purchasers thereof than those set forth in the Pre-Emptive Right Notice delivered in accordance original offer notice without renewed compliance with this Section 7.1.1. Any Proposed Securities offered 3.1. (b) Notwithstanding the foregoing, the right to purchase granted under this Article III will be inapplicable with respect to any issuance or sold proposed issuance by the Company after such 60-day period must of (i) securities issued as consideration for the acquisition of another business by the Company, whether by merger, purchase of all or substantially all of the assets or otherwise, (ii) shares of capital stock issued or issuable in connection with, or upon the exercise of, options or other awards granted to or to be reoffered granted to issue employees, consultants, officers, directors, advisors or sell independent contractors of the Company or of any Affiliate of the Company pursuant to the Investor Parties Stock Option Plan, including shares of Common Stock issued in replacement of shares of Common Stock repurchased or issuable upon exercise of options granted in replacement, exchange, or reissuance of any options to purchase Common Stock, to the extent permitted under the Stock Option Plan or related agreement and approved by the Board of Directors, (iii) securities issued as a result of any stock split, stock dividend or reclassification of the Company's stock not resulting in a change in beneficial ownership of any stockholder, (iv) shares of capital stock issued pursuant to this Section 7.1; provided thatany agreement in effect on the date hereof, subject (v) shares of capital stock issued to compliance any Employee or a Radiology Practice, (vi) shares of capital stock issued to any strategic partner in a transaction approved by the Board of Directors, and (vii) shares of capital stock issued to lenders in connection with the terms and conditions set forth in Section 7.1.5, the Company shall not be required to reoffer to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as to any subsequent proposed issuance. 7.1.4 In the case of an issuance subject to this Section 7.1 for consideration in whole or in part other than cash, including debt securities acquired in exchange therefor, the consideration other than cash shall be deemed to be the “Fair Market Value” (as defined in the Certificate of Designation) thereof. 7.1.5 In the event that the Company is not required to offer or reoffer to an Investor Party any Proposed Securities because such issuance would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered to the Company in writing at or before the Pre-Emptive Right Lapse Time, at the Investors’ election (acting in its sole discretion): (a) consider and discuss in good faith modifications proposed by the Investors to the terms and conditions of such portion of the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (b) take such actions as may be reasonably necessary to seek stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties, including without limitation, calling a special meeting of the Company’s stockholders to vote on (and including in the proxy statement related thereto) a proposal to authorize and approve potential equity issuances by the Company upon exercise of the Investor Parties’ rights pursuant to Section 7 which occur prior to the seven-year anniversary of such special meeting and a recommendation by the Company Board in favor of the approval of such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders).

Right to Participate in Certain Sales of Additional Securities. 7.1.1 (a) For so long as any shares a period of Registrable Securities remain outstandingthree years after the Closing, subject to the terms and conditions of this Section 6.2 the Company agrees that it will not (and that it will cause its subsidiaries not to) sell or issue any shares of Capital Stock capital stock of the Company, or Equity other securities convertible into or exchangeable for capital stock of the Company, or Options, warrants or rights carrying any rights to purchase capital stock of the Company (the “New Securities, in each case”), unless (x) the Company first submits a written notice (a the “Pre-Emptive Right Preemptive Rights Notice”) to the Investors (for Purchasers identifying the benefit of the Investor Parties) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed sale (including the price, number or aggregate principal amount and type of such Proposed Securities; securities and (Call other material terms) the amount of such Proposed Securities proposed to be issued; provided, that following the delivery of such notice, the Company shall deliver to the Investors (for the benefit of the Investor Parties) any such information the Investors may reasonably request in order to evaluate the proposed issuance, (y) it and offers to issue and sell each Purchaser the opportunity to the Investor Parties, on such terms purchase its Pro Rata Allotment (as the Proposed Securities are issued and upon full payment by the Investor Parties, the lesser of (i) fifty percent (50%hereinafter defined) of the Proposed New Securities (on terms and conditions, including price, not less favorable than those on which the Company proposes to be allocated among sell such New Securities to a third party or parties. The Company’s offer to the Investor Parties in proportion to their respective levels Purchasers shall remain open for a period of ownership of Series B Shares as of 20 days after the date of the Pre-Emptive Preemptive Rights Notice) or (ii) , during which time the percentage of the Proposed Securities equal to the aggregate Participation Portions of the Investor Parties (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice); provided, however, that, subject to compliance with the terms and conditions set forth in Section 7.1.5, the Company shall not be required to Purchasers may accept such offer to issue or sell to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for the benefit of the Investor Parties), which notice shall include a description of the Proposed Securities (including the number thereof) that would require stockholder approval in respect of the issuance thereof). 7.1.2 The Investor Parties will have the option, exercisable by written notice delivered to the Company setting forth the maximum number of New Securities sought to be purchased by any such Purchaser. Any New Securities so offered that are not purchased by the Investors (on behalf of the Investor Parties) Purchasers pursuant to the Company, to accept the Company’s such offer and commit to purchase any or all of the Proposed Securities offered to may be sold by the Company to such Investor PartiesCompany, which notice must be given prior to but only at a price not less than the later of (x) five (5) Business Days after receipt of such notice from the Company price and (y) two (2) Business Days prior to the proposed issuance date set forth in the Pre-Emptive Right Notice (the “Pre-Emptive Right Lapse Time”). If the Company offers two (2) or more securities as a unit to all on other participants in the offering, the Investor Parties will be given the same choice as provided to other participants in the offering. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by any such Investor Party may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Authority or (ii) permit one or more Investor Parties to receive proceeds from calling capital pursuant to commitments made by its (or its affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor Parties have not elected to purchase during the 60 days following such expiration on terms and conditions no not more favorable to the purchasers thereof than those offered as set forth in the Preemptive Rights Notice, at any time within 90 days following the termination of the above-referenced 20 day period. For purposes of this Section 6, the “Pro Rata Allotment” of the New Securities of Purchasers is based on the ratio that the Conversion Shares held by or issuable to such Purchaser upon conversion of its Series A Preferred Shares on the date of the Preemptive Rights Notice bears to the Investor Parties in sum of the Pretotal number of shares of Common Stock outstanding on the date of the Preemptive Rights Notice (including the Conversion Shares issuable upon conversion of the Series A Preferred Stock on an as-Emptive Right Notice delivered in accordance converted basis). (b) Notwithstanding the foregoing, the right to purchase the New Securities is inapplicable with Section 7.1.1. Any Proposed Securities offered respect to any issuance or sold proposed issuance by the Company after such 60of any (i) shares of Common Stock, Options or Convertible Securities issued as a dividend or distribution on Series A Preferred Shares; (ii) shares of Common Stock, Options or Convertible Securities issued by reason of a dividend, stock split, split-day period must be reoffered up or other distribution on shares of Common Stock; (iii) shares of Common Stock or Options issued to issue employees or sell to the Investor Parties pursuant to this Section 7.1; provided thatdirectors of, subject to compliance with the terms and conditions set forth in Section 7.1.5or consultants or advisors to, the Company shall not be required or any of its subsidiaries pursuant to reoffer a plan, agreement or arrangement approved by the Board of Directors; (iv) shares of Common Stock or Convertible Securities actually issued upon the exercise of Options or shares of Common Stock actually issued upon the conversion or exchange of Convertible Securities; (v) shares of Common Stock, Options or Convertible Securities issued to suppliers or third party service providers in connection with the provision of goods or services pursuant to transactions approved by the Board of Directors; (vi) shares of Common Stock, Options or Convertible Securities issued as acquisition consideration pursuant to the Investor Parties acquisition of another corporation by the portion Company by merger, purchase of substantially all of the Proposed Securities that would require the Company assets or other reorganization or to obtain stockholder approval in respect of the issuance of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as a joint venture agreement or to any subsequent proposed issuance. 7.1.4 In the case of an issuance subject to this Section 7.1 for consideration in whole or in part other than cash, including securities acquired in exchange therefor, the consideration other than cash shall be deemed to be the “Fair Market Value” Deemed Liquidation Event (as such term is defined in the Certificate of DesignationDesignations), provided that such issuances are approved by the Board of Directors; (vii) thereof. 7.1.5 In the event that the Company is not required to offer or reoffer shares of Common Stock issued pursuant to an Investor Party any Proposed effective registration statement filed under the Securities because such issuance would require the Company to obtain stockholder approval Act; (viii) shares of Common Stock, Options or Convertible Securities issued in respect bona fide financing transactions resulting, in one transaction or a series of the issuance related transactions, in less than $2.0 million of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered proceeds to the Company in writing at Company; or before the Pre-Emptive Right Lapse Time(ix) shares of Common Stock, at the Investors’ election (acting in its sole discretion): (a) consider and discuss in good faith modifications proposed by the Investors Options or Convertible Securities issued pursuant to the terms and conditions of such portion of the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (b) take such actions as may be reasonably necessary to seek stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties, including without limitation, calling a special meeting of the Company’s stockholders to vote on (and including in the proxy statement related thereto) a proposal to authorize and approve potential equity issuances by the Company upon exercise of the Investor Parties’ rights pursuant to Section 7 which occur prior to the seven-year anniversary of such special meeting and a recommendation by the Company Board in favor of the approval of such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders)ATM Agreement.

Right to Participate in Certain Sales of Additional Securities. 7.1.1 For so long as any shares of Registrable Securities remain outstanding, the The Company agrees that it will not (and that it will cause its subsidiaries not to) sell or issue any shares of Capital Stock capital stock of the Company, or Equity Securitiesother securities convertible into or exchangeable for capital stock of the Company, in each caseor options, warrants or rights carrying any rights to purchase capital stock of the Company unless (x) the Company first submits a written notice (a “Pre-Emptive Right Notice”) offer to the Investors (for the benefit of the Investor Partiesincluding their Permitted Transferees) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, to the extent applicablecollectively, the voting powers, preferences and relative participating, optional or other special rights, and "Offerees') identifying the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed sale (including price, number or aggregate principal amount of such Proposed Securities; securities and all other material terms), and offers to each Investor (Cincluding each Permitted Transferee) the amount of such Proposed Securities proposed opportunity to be issued; provided, that following the delivery of such notice, the Company shall deliver to the Investors purchase its Pro Rata Allotment (for the benefit of the Investor Parties) any such information the Investors may reasonably request in order to evaluate the proposed issuance, (y) it offers to issue and sell to the Investor Parties, on such terms as the Proposed Securities are issued and upon full payment by the Investor Parties, the lesser of (i) fifty percent (50%hereinafter defined) of the Proposed Securities securities (subject to increase for over-allotment if some Investors do not fully exercise their rights) on terms and conditions, including price, not less favorable than those on which the Company proposes to sell such securities to a third party or parties. Each Offeree's "Pro Rata Allotment" of such securities shall be allocated among based on the Investor Parties ratio which the shares of Common Stock (including shares of Common Stock issuable upon conversion of Preferred Stock) then owned by it bears to all of the then issued and outstanding shares of Common Stock (including shares of Common Stock issuable upon conversion of Preferred Stock calculated in proportion each case on a fully-diluted basis giving effect to their respective levels the conversion of ownership convertible securities and assuming the exercise of Series B Shares all outstanding vested options, in each case as of the date of such written offer. The Company's offer pursuant to this Section 4. 1 shall remain open and irrevocable for a period of 30 days, and the Prerecipients of such offer shall elect to purchase by giving written notice thereof to the Company within such 30-Emptive Rights Noticeday period, including therein the maximum number of shares or other securities which the Offeree would purchase if other Offerees do not elect to purchase, with the rights of electing Offerees to purchase such additional shares to be based upon the relative holdings of Common Stock (including shares of Common Stock issuable upon conversion of Preferred Stock) or (ii) the percentage of the Proposed Securities equal electing Offerees in the case of over-subscription. Any securities so offered which are not purchased pursuant to such offer may be sold by the aggregate Participation Portions of the Investor Parties (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice); provided, however, that, subject to compliance with Company but only on the terms and conditions set forth in Section 7.1.5the initial offer, at any time within 120 days following the Company shall termination of the above-referenced 30-day period but may not be required sold to offer to issue any other person or sell to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for the benefit of the Investor Parties), which notice shall include a description of the Proposed Securities (including the number thereof) that would require stockholder approval in respect of the issuance thereof). 7.1.2 The Investor Parties will have the option, exercisable by written notice delivered by the Investors (on behalf of the Investor Parties) to the Company, to accept the Company’s offer and commit to purchase any or all of the Proposed Securities offered to be sold by the Company to such Investor Parties, which notice must be given prior to the later of (x) five (5) Business Days after receipt of such notice from the Company and (y) two (2) Business Days prior to the proposed issuance date set forth in the Pre-Emptive Right Notice (the “Pre-Emptive Right Lapse Time”). If the Company offers two (2) or more securities as a unit to all other participants in the offering, the Investor Parties will be given the same choice as provided to other participants in the offering. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by any such Investor Party may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Authority or (ii) permit one or more Investor Parties to receive proceeds from calling capital pursuant to commitments made by its (or its affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor Parties have not elected to purchase during the 60 days following such expiration on terms and conditions no conditions, including price, that are more favorable to the purchasers thereof purchaser than those offered set forth in such offer or after such 120-day period without renewed compliance with this Section 4. 1. Notwithstanding the foregoing, the right to purchase granted under this Article IV shall be inapplicable with respect to any issuance or proposed issuance by the Company of (i) securities issued in connection with the acquisition of another corporation by the Company, whether by merger, purchase of all or substantially all of the assets of such corporation, or otherwise, (ii) up to 994,407 shares (or options to purchase shares) of Common Stock (subject to adjustment in the event of stock splits, stock dividends, recapitalizations and like events) issued or granted to employees, consultants, officers, directors, advisors or independent contractors of the Company or of any Affiliate of the Company pursuant to the Investor Parties in Company's 1997 Stock Option and Grant Plan, (iii) securities issued as a result of any stock split, stock dividend, reclassification or reorganization of the Pre-Emptive Right Notice delivered Company's capital stock or (iv) Common Stock issued upon conversion of the Convertible Preferred Stock in accordance with Section 7.1.1. Any Proposed Securities offered or sold by the Company after such 60-day period must be reoffered to issue or sell to the Investor Parties pursuant to this Section 7.1; provided that, subject to compliance with the terms and conditions set forth in Section 7.1.5, the Company shall not be required to reoffer to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as to any subsequent proposed issuance. 7.1.4 In the case of an issuance subject to this Section 7.1 for consideration in whole or in part other than cash, including securities acquired in exchange therefor, the consideration other than cash shall be deemed to be the “Fair Market Value” (as defined in the Certificate of Designation) thereof. 7.1.5 In the event that the Company is not required to offer or reoffer to an Investor Party any Proposed Securities because such issuance would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered to the Company in writing at or before the Pre-Emptive Right Lapse Time, at the Investors’ election (acting in its sole discretion): (a) consider and discuss in good faith modifications proposed by the Investors to the terms and conditions of such portion of the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (b) take such actions as may be reasonably necessary to seek stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties, including without limitation, calling a special meeting of the Company’s stockholders to vote on ('s Amended and including in the proxy statement related thereto) a proposal to authorize and approve potential equity issuances by the Company upon exercise Restated Articles of the Investor Parties’ rights pursuant to Section 7 which occur prior to the seven-year anniversary of such special meeting and a recommendation by the Company Board in favor of the approval of such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders)Incorporation.

Right to Participate in Certain Sales of Additional Securities. 7.1.1 For so long as any shares Subject to Section 5.6 of Registrable Securities remain outstandingthe Purchase Agreement, the Company agrees that it will not (and that it will cause its subsidiaries not to) sell or issue any shares of Capital Stock capital stock of the Company, or Equity other securities convertible into or exchangeable for capital stock of the Company or options, warrants or rights carrying any rights to purchase capital stock of the Company (the “Offered Securities, in each case, ”) unless (x) the Company first submits a written notice (a the “Pre-Emptive Right Preemptive Rights Notice”) to the Investors (for identifying the benefit of the Investor Parties) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed sale of such Proposed Securities; and (C) the including price, number or aggregate principal amount of such Proposed securities and all other material terms), and offers to each Investor the opportunity to purchase its Pro Rata Allotment (as hereinafter defined) of the Offered Securities proposed (subject to be issued; providedincrease for over-allotment if any of the Investors do not fully exercise their rights) on terms and conditions, that following the delivery of such noticeincluding price, not less favorable than those on which the Company shall deliver proposes to sell such securities to a third party or parties. The Company’s offer to the Investors shall remain open and irrevocable for a period of thirty (for the benefit of the Investor Parties30) any such information days during which time the Investors may reasonably request in order to evaluate the proposed issuance, (y) it offers to issue and sell accept such offer by written notice to the Company setting forth the maximum number of shares or other securities to be purchased by any such Investor, including the number of shares or securities which the Investor Partieswould purchase if the other Investors do not elect to purchase, with the rights of the electing Investors to purchase such additional shares or securities to be based on such terms as the Proposed Securities relative holdings of shares of the electing Investors. Any securities so offered which are issued and upon full payment not purchased by the Investor PartiesInvestors pursuant to such offer may be sold by the Company, the lesser of (i) fifty percent (50%) of the Proposed Securities (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice) or (ii) the percentage of the Proposed Securities equal to the aggregate Participation Portions of the Investor Parties (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice); provided, however, that, subject to compliance with but only on the terms and conditions set forth in Section 7.1.5, the Company shall not be required to initial offer to issue or sell to the Investor Parties Investors, at any time within one hundred twenty (120) days following the portion termination of the Proposed Securities that would require above-referenced thirty (30) day period. For purposes of this Section 3.1, each Investor’s “Pro Rata Allotment” of securities shall be based on the Company to obtain stockholder approval in respect ratio which the shares of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for the benefit of the Investor Parties), which notice shall include a description of the Proposed Securities (including the number thereof) that would require stockholder approval in respect of the issuance thereof). 7.1.2 The Investor Parties will have the option, exercisable Common Stock held by written notice delivered by the Investors (on behalf of the Investor Parties) to the Company, to accept the Company’s offer and commit to purchase any or all of the Proposed Securities offered to be sold by the Company to such Investor Parties, which notice must be given prior to the later of (x) five (5) Business Days after receipt of such notice from the Company and (y) two (2) Business Days prior to the proposed issuance date set forth in the Pre-Emptive Right Notice (the “Pre-Emptive Right Lapse Time”). If the Company offers two (2) or more securities as a unit to all other participants in the offering, the Investor Parties will be given the same choice as provided to other participants in the offering. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by any such Investor Party may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Authority or (ii) permit one or more Investor Parties to receive proceeds from calling capital pursuant to commitments made by its (or its affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor Parties have not elected to purchase during the 60 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Investor Parties in the Pre-Emptive Right Notice delivered determined in accordance with Section 7.1.11.2 hereof) bears to the total number of shares of Common Stock outstanding on the date of the Preemptive Rights Notice (determined on a fully-diluted and an as-converted basis). Any Proposed Securities offered Notwithstanding the foregoing, the right to purchase shall be inapplicable with respect to any issuance or sold proposed issuance by the Company after of (i) up to 17,350,204 shares of Common Stock and up to 325,000 shares of Series 1 Stock, as appropriately adjusted for stock splits, stock dividends, recapitalizations and the like (or options to purchase such 60-day period must be reoffered Common Stock or Series 1 Stock) to issue or sell to the Investor Parties its officers, directors, employees and consultants pursuant to this Section 7.1; provided that, subject to compliance with the terms stock and conditions set forth in Section 7.1.5, the Company shall not be required to reoffer to the Investor Parties the portion options plans approved by a majority of the Proposed Securities that would require the Company to obtain stockholder approval in respect Board of Directors, (ii) Common Stock upon conversion of the issuance Preferred Stock, (iii) securities as a result of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as to any subsequent proposed issuance. 7.1.4 In the case of an issuance subject to this Section 7.1 for consideration in whole stock split, stock dividend or in part other than cash, including securities acquired in exchange therefor, the consideration other than cash shall be deemed to be the “Fair Market Value” (as defined in the Certificate of Designation) thereof. 7.1.5 In the event that the Company is not required to offer or reoffer to an Investor Party any Proposed Securities because such issuance would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered to the Company in writing at or before the Pre-Emptive Right Lapse Time, at the Investors’ election (acting in its sole discretion): (a) consider and discuss in good faith modifications proposed by the Investors to the terms and conditions of such portion of the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (b) take such actions as may be reasonably necessary to seek stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties, including without limitation, calling a special meeting combination of the Company’s stockholders Common Stock, (iv) securities upon conversion or exercise of convertible or exercisable securities outstanding on the date hereof, (v) securities upon conversion of the Note or exercise of any warrants issued to vote on the New Investor in connection with the Purchase Agreement, (vi) securities in connection with a merger, consolidation, acquisition or similar business combination approved by a majority of the Board of Directors, (vii) securities pursuant to any loan arrangement or debt financing from a bank or similar financial institution approved by a majority of the Board of Directors, (viii) securities in connection with strategic transactions involving the Company and other entities, including joint venture, marketing or distribution arrangements or technology transfer or development arrangements, provided that such strategic transactions and the issuance of securities in connection therewith have been approved by a majority of the proxy statement related theretoBoard of Directors and (ix) a proposal to authorize and approve potential equity issuances securities purchased by the Company upon exercise of the New Investor Parties’ rights pursuant to Section 7 which occur prior to the seven-year anniversary of such special meeting and a recommendation by the Company Board in favor 5.6 of the approval of such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders)Purchase Agreement.

Right to Participate in Certain Sales of Additional Securities. 7.1.1 For so long as any shares of Registrable Securities remain outstanding, the Company agrees that it will not (and that it will cause its subsidiaries not to) sell or issue any shares of Capital Stock or Equity Securities, in each case, unless (x) the Company first submits a written notice (a “Pre-Emptive Right Notice”) to the Investors (for the benefit of the Investor Parties) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price, timing (which shall be at least three (3) but no more than six (6) Business Days after the delivery or deemed delivery of such Pre-Emptive Right Notice to the Investor) and other terms of the proposed sale of such Proposed Securities; and (C) the amount of such Proposed Securities proposed to be issued; provided, that following the delivery of such notice, the Company shall deliver to the Investors (for the benefit of the Investor Parties) any such information the Investors may reasonably request in order to evaluate the proposed issuance, (y) it offers to issue and sell to the Investor Parties, on such terms as the Proposed Securities are issued and upon full payment by the Investor Parties, the lesser of (i) fifty percent (50%) Participation Portion of the Proposed Securities (to be allocated among the Investor Parties as may be determined by the Investors acting in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Notice) or (ii) the percentage of the Proposed Securities equal to the aggregate Participation Portions of the Investor Parties (to be allocated among the Investor Parties in proportion to their respective levels of ownership of Series B Shares as of the date of the Pre-Emptive Rights Noticesole discretion); provided, however, that, subject to compliance with the terms and conditions set forth in Section 7.1.5, the Company shall not be required to offer to issue or sell to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties under Nasdaq Marketplace Rule 5635 unless such approval has been obtained (provided, further, however, that the Company shall still be obligated to provide written notice of such proposed issuance to the Investors (for the benefit of the Investor Parties), which notice shall include a description of the Proposed Securities (including the number thereof) that would require stockholder approval in respect of the issuance thereofthereof (the “Restricted Issuance Information”)). 7.1.2 The Investor Parties will have the option, exercisable by written notice delivered by the Investors (on behalf of the Investor Parties) to the Company, to accept the Company’s offer and commit to purchase any or all of the Proposed Securities offered to be sold by the Company to the Investor Parties (allocated among such Investor PartiesParties as determined by the Investors in their sole discretion), which notice must be given prior to the later of (x) five (5) Business Days after receipt of such notice from the Company and (y) two (2) Business Days prior to the proposed issuance date set forth in the Pre-Emptive Right Notice (the “Pre-Emptive Right Lapse Time”). If the Company offers two (2) or more securities as a unit to all other participants in the offering, the Investor Parties will be given the same choice as provided to other participants in the offering. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by any such Investor Party may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Authority or (ii) permit one or more Investor Parties to receive proceeds from calling capital pursuant to commitments made by its (or its affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor Parties have not elected to purchase during the 60 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Investor Parties in the Pre-Emptive Right Notice delivered in accordance with Section 7.1.1. Any Proposed Securities offered or sold by the Company after such 60-day period must be reoffered to issue or sell to the Investor Parties pursuant to this Section 7.1; provided that, subject to compliance with the terms and conditions set forth in Section 7.1.5, the Company shall not be required to reoffer to the Investor Parties the portion of the Proposed Securities that would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under the under Nasdaq Marketplace Rule 5635 unless such approval has been obtained. 7.1.3 The election by any Investor Party not to exercise its pre-emptive rights under this Section 7.1 in any one instance shall not affect its right as to any subsequent proposed issuance. 7.1.4 In the case of an issuance subject to this Section 7.1 for consideration in whole or in part other than cash, including securities acquired in exchange therefor, the consideration other than cash shall be deemed to be the “Fair Market Value” (as defined in the Certificate of Designation) thereof. 7.1.5 In the event that the Company is not required to offer or reoffer to an Investor Party any Proposed Securities because such issuance would require the Company to obtain stockholder approval in respect of the issuance of any Proposed Securities under Nasdaq Marketplace Rule 5635, the Company shall, upon the reasonable request of the Investors delivered to the Company in writing at or before the Pre-Emptive Right Lapse Time, at the Investors’ election (acting in its sole discretion): (a) waive the restrictions set forth in Section 8.1 solely to the extent necessary to permit the Investor Parties to acquire such number of securities of the Company (including Common Shares) equivalent to the Participation Portion of the Proposed Securities the Investor Parties would have been entitled to purchase had they been entitled to acquire such Proposed Securities pursuant to Section 7.1 (provided, that such request the Investors shall not be deemed to be a violation of Section 8.1); (b) consider and discuss in good faith modifications proposed by the Investors to the terms and conditions of such portion of the Proposed Securities which would otherwise be issued to the Investor Party such that the Company would not be required to obtain stockholder approval in respect of the issuance of such Proposed Securities as so modified; and/or; (bc) take such actions as may be reasonably necessary to seek stockholder approval in respect of the issuance of any Proposed Securities to the Investor Parties, including without limitation, calling a special meeting of the Company’s stockholders to vote on (and including in the proxy statement related thereto) a proposal to authorize and approve potential equity issuances by the Company upon exercise of the Investor Parties’ rights pursuant to Section 7 which occur prior to the seven-year anniversary of such special meeting and a recommendation by the Company Board in favor of the approval of such proposal (providing the highest level of support for the approval of such proposal as the Company Board provides to any other proposal included in either such proxy statement or the proxy statement for the preceding year’s annual meeting of stockholders).