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

Right to Participate in Certain Sales of Additional Securities. The Company agrees that it will not sell or issue (i) any shares of capital stock, (ii) securities convertible into or exchangeable for capital stock of the Company or (iii) options, warrants or rights carrying any rights to purchase capital stock of the Company, unless the Company first submits a written offer to each Investor and Stockholder who holds any shares of capital stock of the Company and each of their permitted transferees holding at least two percent (2%) of the fully-diluted capital stock of the Company (collectively, the "Offerees") identifying the terms of the proposed sale (including price, number or aggregate principal amount of securities and all other material terms), and offers to each Offeree the opportunity to purchase its Pro Rata Allotment (as hereinafter defined) of the 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 based on the ratio (as determined in accordance with Section 1.3 hereof) which the Shares then owned by it bears to all of the then issued and outstanding Shares 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 30 days, and the recipients of such offer shall elect to purchase by giving written notice thereof to the Company within such 30-day 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 Shares of the 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 Company, but only on the terms and conditions set forth in the initial offer, at any time within 120 days following the termination of the above-referenced 30-day period but may not be sold to any other person or on terms and conditions, including price, that are more favorable to the purchaser than those 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 (i) options to purchase shares of Common Stock granted or to be granted pursuant to the Company's 1998 Stock Plan (as defined in the Purchase Agreement), (ii) securities issued as a result of any stock split, stock dividend, reclassification or reorganization or similar event with respect to the Common Stock or (iii) shares of Common Stock issued upon conversion of the Preferred Stock or upon exercise of options granted pursuant to the Company's 1998 Stock Plan or options to purchase shares of Common Stock outstanding as of the date hereof.

Right to Participate in Certain Sales of Additional Securities. The Company agrees that it will not sell or issue issue: (ia) any shares of capital stockstock of the Company, (iib) securities convertible into or exercisable or exchangeable for capital stock of the Company or (iiic) options, warrants or rights carrying any rights to purchase capital stock of the Company, unless the Company first submits a written offer notice to each Investor and Stockholder who holds any shares of capital stock of the Company and each of their permitted transferees holding at least two percent (2%) of the fully-diluted capital stock of the Company (collectively, the "Offerees") identifying the terms of the proposed sale (including price, number number, or aggregate principal amount of securities and all other material terms), and offers to each Offeree Stockholder the opportunity to purchase its Pro Rata Allotment (as hereinafter defined) of the securities (subject to increase for over-allotment if some Offerees Stockholders 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 based on the ratio (as determined in accordance with Section 1.3 hereof) which the Shares then owned by it bears to all of the then issued and outstanding Shares as of the date of such written offer. The Company's ’s offer pursuant to this Section 3.1 4.1 shall remain open and irrevocable for a period of 30 days, and thirty (30) days following receipt by the recipients Stockholders of such written notice. The Company shall not be required to make an offer shall elect to purchase by giving written notice thereof Stockholders pursuant to this Section 4.1 for securities (i) issuable upon the exercise, conversion or exchange of exercisable, convertible or exchangeable securities which are originally issued in accordance with this Section 4.1; (ii) offered to the Company within such 30-day periodpublic; (iii) issued in connection with any investment for strategic business purposes by a person who is not already a Stockholder which has been approved by the Board of Directors; (iv) issued in connection with any merger, including therein the maximum number of Shares consolidation, recapitalization or other securities business combination which has been approved by the Offeree would Board of Directors; (v) issued pursuant to the acquisition of another entity by the Company by merger, purchase if of substantially all the assets or other Offerees do reorganization whereby the Stockholders immediately prior to such transaction own not elect to purchaseless than a majority of the voting power of the surviving entity; (vi) issued in consideration, whether in whole or in part, in connection with the rights extension of electing Offerees any credit or the making of any loan to purchase such additional shares to be based upon the relative holdings of Shares of the 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 Company, but only on or the terms and conditions set forth in issuance by the initial offerCompany of any debt security to any person who is not a Stockholder; (vii) issuable to any officer, at any time within 120 days following the termination director or employee of the above-referenced 30-day period but may not be sold Company pursuant to any other person or on terms and conditionsoption plan of the Company approved by the Board of Directors, including price, that are more favorable to the purchaser than those 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 (i) options to purchase shares of Common Stock granted or to be granted pursuant to the Company's 1998 Stock Plan (as defined in the Purchase Agreement), (ii) securities issued as a result of any stock split, stock dividend, reclassification or reorganization or similar event with respect to the Common Stock or (iiiviii) shares issued in any transaction in respect of Common Stock issued upon conversion a security that is available to all holders of the Preferred Stock or upon exercise of options granted pursuant to the Company's 1998 Stock Plan or options to purchase shares of Common Stock outstanding as of the date hereofsuch security on a pro rata basis.

Right to Participate in Certain Sales of Additional Securities. The Notwithstanding anything to the contrary in the Articles of Incorporation, the Company agrees that it will not sell or issue (i) any shares of capital stockstock of the Company, (ii) or other securities convertible into or exchangeable for capital stock of the Company Company, or (iii) options, warrants or rights carrying any rights to purchase capital stock of the Company, Company unless the Company first submits a written offer to the Investors and the Shareholders (including for all purposes of this Section 6 each Investor and Stockholder who holds any shares permitted transferee of capital stock of the Company and each of their permitted transferees holding at least two percent (2%) of the fully-diluted capital stock of the Company (collectively, the "Offerees"a Shareholder pursuant to Section 5.1(b)) identifying the terms of the proposed sale (including price, number or aggregate principal amount of securities and all other material terms), and offers to each Offeree Investor and Shareholder the opportunity to purchase its Pro Rata Allotment Share (as hereinafter defined) of the securities (subject to increase for over-allotment if some Offerees Investors or Shareholders do not fully exercise their rights) on terms and conditions, including price, not less favorable to the Investors and Shareholders than those on which the Company proposes to sell such securities to a third party or parties. Each OffereeInvestor's or Shareholder's "Pro Rata AllotmentShare" of such securities shall be based on the ratio (as determined in accordance with Section 1.3 hereof) which the Shares then owned shares of Common Stock held by he, she or it bears to all of the then issued and outstanding Shares shares of Common Stock calculated on a fully-diluted basis giving effect to the conversion of convertible securities as of the date of such written offer. The Company's offer pursuant to this Section 3.1 the Investors and Shareholders shall remain open and irrevocable for a period of 30 days, and the recipients of such offer shall Investors and Shareholders who elect to purchase by giving written notice thereof shall have the first right to the Company within such 30-day period, including therein the maximum number of Shares take up and purchase any shares or other securities which the Offeree would purchase if other Offerees Investors or Shareholders do not elect to purchase, with the rights of electing Offerees to purchase such additional shares to be based upon on the relative holdings of Shares of the electing Offerees in the case of over-subscriptionpurchasers. Any securities so offered which are not purchased pursuant to such offer may be sold by the Company, Company but only on the terms and conditions set forth in the initial offeroffer to the Investors and Shareholders, at any time within 120 90 days following the termination of the above-referenced 30-day period but may not be sold to any other person or on terms and conditions, including price, that are more favorable to the purchaser than those set forth in such offer or after such 12090-day period without renewed compliance with this Section 3.16.1. Notwithstanding the foregoing, the right Company may (i) issue options and shares of restricted stock to purchase granted under this Article III shall be inapplicable its officers and employees with respect to any (i) options up to purchase 75,000 shares of Common Stock granted or to be granted pursuant to the Company's 1998 Plan and issue shares of its Common Stock Plan (as defined in upon the Purchase Agreement)exercise of any such stock options, (ii) issue Conversion Shares upon the conversion of the Convertible Preferred Shares, and this Section 6 shall not apply with respect to such issuances and (iii) issue securities issued as a result of any stock split, stock dividend, reclassification or reorganization or similar event with respect to the Common Stock or (iii) shares of Common Stock issued upon conversion of the Preferred Stock or upon exercise of options granted pursuant to the Company's 1998 Stock Plan or options to purchase shares of Common Stock outstanding as of the date hereofstock.

Right to Participate in Certain Sales of Additional Securities. The Company agrees that it will not sell or issue (i) any shares of capital stockstock of the Company, (ii) or other securities convertible into or exchangeable for capital stock of the Company Company, or (iii) options, warrants or rights carrying any rights to purchase capital stock of the Company, Company unless the Company first submits a written offer to each Investor and Stockholder who holds any shares of capital stock of the Company and each of their permitted transferees holding at least two percent (2%) of the fully-diluted capital stock of the Company (collectively, the "Offerees") Investors identifying the terms of the proposed sale (including price, number or aggregate principal amount of securities and all other material terms), and offers to each Offeree Investor the opportunity to purchase its Pro Rata Allotment Share (as hereinafter defined) of the securities (subject to increase for over-allotment if some Offerees Investors do not fully exercise their rights) on terms and conditions, including price, not less favorable to the Investors than those on which the Company proposes to sell such securities to a third party or parties. Each OffereeInvestor's "Pro Rata AllotmentShare" of such securities shall be based on the ratio (as determined in accordance with Section 1.3 hereof) which the Shares then owned shares of Common Stock held by it bears to all of the then issued and outstanding Shares shares of Common Stock calculated on a fully-diluted basis giving effect to the conversion of convertible securities as of the date of such written offer. The Company's offer pursuant to this Section 3.1 the Investors shall remain open and irrevocable for a period of 30 days, and the recipients of such offer shall Investors who elect to purchase by giving written notice thereof shall have the first right to the Company within such 30-day period, including therein the maximum number of Shares take up and purchase any shares or other securities which the Offeree would purchase if other Offerees Investors do not elect to purchase, with the rights of electing Offerees to purchase such additional shares to be based upon on the relative holdings of Shares of the electing Offerees in the case of over-subscriptionpurchasers. Any securities so offered which are not purchased pursuant to such offer may be sold by the Company, Company but only on the terms and conditions set forth in the initial offeroffer to the Investors, at any time within 120 90 days following the termination of the above-referenced 30-day period but may not be sold to any other person or on terms and conditions, including price, that are more favorable to the purchaser than those set forth in such offer or after such 12090-day period without renewed compliance with this Section 3.15.1. Notwithstanding the foregoing, the right Company may (i) issue shares of its Common Stock to purchase granted under this Article III shall be inapplicable its officers, employees, advisors, consultants, and directors with respect to any (i) options to purchase up to an aggregate 1,231,985 shares of Common Stock granted or to be granted pursuant to the Company's 1998 Stock Option Plan (as defined in the Purchase Agreement), (ii) securities issued as a result of any stock split, stock dividend, reclassification or reorganization or similar event with respect to the Common Stock or (iii) shares of Common Stock issued upon conversion of the Preferred Stock or upon exercise of options granted pursuant to the Company's 1998 Stock Plan or options to purchase shares of Common Stock outstanding effect as of the date hereof, and (ii) issue Conversion Shares upon the conversion of the Convertible Preferred Shares, and this Section 5 shall not apply with respect to such issuances.

Right to Participate in Certain Sales of Additional Securities. (A) The Company agrees that it will not sell or issue (i) any shares of capital stockstock of the Company, (ii) or other securities convertible into or exchangeable for capital stock of the Company Company, or (iii) options, warrants or rights carrying any rights to purchase capital stock of the Company, Company (the "Offered Securities") unless the Company first submits a written offer to each Investor and Stockholder who holds any shares of capital stock of the Company and each of their permitted transferees holding at least two percent notice (2%) of the fully-diluted capital stock of the Company (collectively, the "OffereesPreemptive Rights Notice") to the Qualified Investors identifying the terms of the proposed sale (including price, number or aggregate principal amount of securities and all other material terms), and offers to each Offeree the Qualified Investors the opportunity to purchase its their respective Pro Rata Allotment (as hereinafter defined) of the securities (subject to increase for over-allotment if some Offerees do not fully exercise their rights) Offered 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. Each Offeree's "Pro Rata Allotment" of such securities shall be based on the ratio (as determined in accordance with Section 1.3 hereof) which the Shares then owned by it bears to all of the then issued and outstanding Shares as of the date of such written offer. The Company's offer pursuant to this Section 3.1 the Qualified Investors shall remain open and irrevocable for a period of 30 days, and fifteen (15) Business Days during which time the recipients of Qualified Investors may accept such offer shall elect to purchase by giving written notice thereof to the Company within such 30-day period, including therein setting forth the maximum number of Shares 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 purchased by the relative holdings of Shares of the electing Offerees in the case of over-subscriptionQualified Investors. Any securities so offered which are not purchased by the Qualified Investors pursuant to such offer may be sold by the Company, but only on the terms and conditions set forth in the initial offeroffer to the Qualified Investors, at any time within 120 90 days following the termination of the above-referenced 3015-day period but may not be sold to any other person or on terms and conditions, including price, that are more favorable to the purchaser than those set forth in such offer or after such 120-day period without renewed compliance with period. For purposes of this Section 3.1. Notwithstanding the foregoing, the right to purchase granted under this Article III Qualified Investors' "Pro Rata Allotment" of securities shall be inapplicable with respect to any (i) options to purchase based on the ratio which the shares of Common Stock granted or to be granted pursuant held by the Qualified Investors (as determined in accordance with Section 1.2 hereof) bears to the Company's 1998 Stock Plan (as defined in the Purchase Agreement), (ii) securities issued as a result total number of any stock split, stock dividend, reclassification or reorganization or similar event with respect to the Common Stock or (iii) shares of Common Stock issued upon conversion of the Preferred Stock or upon exercise of options granted pursuant to the Company's 1998 Stock Plan or options to purchase shares of Common Stock outstanding as on the date of the date hereofPreemptive Rights Notice (and determined on an as converted basis).

Right to Participate in Certain Sales of Additional Securities. The So -------------------------------------------------------------- long as the Investor continues to hold an aggregate number of Convertible Preferred Shares and Conversion Shares equal to at least 50% of the Convertible Preferred Shares purchased hereunder (subject to adjustments for stock splits, stock dividends and the like), the Company agrees that it will not sell or issue (i) any shares of capital stock, (ii) stock of the Company or other securities convertible into or exchangeable for capital stock of the Company Company, or (iii) options, warrants or rights carrying any rights to purchase capital stock of the Company, Company unless the Company first submits a written offer to each the Investor and Stockholder who holds any shares of capital stock of the Company and each of their permitted transferees holding at least two percent (2%) of the fully-diluted capital stock of the Company (collectively, the "Offerees") identifying the 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 Offeree the Investor the opportunity to purchase its Pro Rata Allotment Share (as hereinafter defined) of the such 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 to the Investor than those on which the Company proposes to sell such securities to a third party or parties. Each OffereeFor the purposes of this Agreement, the Investor's "Pro Rata AllotmentShare" of such securities shall be based on upon the ratio which (as determined in accordance with Section 1.3 hereofA) the number of shares of Common Stock (which the Shares 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 of the then issued and outstanding Shares as shares of the date Common Stock (which shall include shares of such written offerCommon Stock issuable upon exercise or conversion of securities then outstanding). The Company's offer pursuant to this Section 3.1 shall remain open and irrevocable for a period of 7 days. The closing of any such Offer shall occur no sooner than 30 days, and days after the recipients delivery of such offer shall elect to purchase by giving written notice thereof to the Company within such 30-day 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 Shares of the electing Offerees in the case of over-subscriptionOffer. Any securities so offered which are not purchased pursuant to such offer may be sold by the Company, Company but only on the terms and conditions set forth in the initial offeroffer to the Investor, at any time within 120 days following the termination of the above-referenced 30-day period but may not be sold to any other person or on terms and conditions, including price, that are more favorable to the purchaser than those set forth in such offer or after such 120-120- day period without renewed compliance with this Section 3.17.1. Notwithstanding the foregoing, the right to purchase granted under this Article III shall be inapplicable with respect to any Company may issue (i) options shares of Convertible Preferred Stock pursuant to purchase the Series A Warrants and shares of Common Stock granted or to be granted pursuant to the Company's 1998 Stock Plan (as defined in the Purchase Agreement)upon conversion of such shares of Convertible Preferred Stock, (ii) securities issued as a result of any stock split, stock dividend, reclassification or reorganization or similar event with respect Common Stock pursuant to the Common Stock or Warrant and pursuant to warrants and stock Options existing on the date hereof as set forth in Section 7.1 of the Disclosure Schedule, (iii) shares of Common Stock and options (and the Common Stock to be issued upon conversion exercise thereof) included in the Stock Option Pool or otherwise approved by the Board of Directors of the Preferred Stock or upon exercise of options granted pursuant to the Company's 1998 Stock Plan or options to purchase , (iv) shares of Common Stock outstanding as pursuant to warrants issued in connection with August Transactions; and (v) the Conversion Shares and shares of Common Stock upon the date hereofconversion of shares of Convertible Preferred Stock, and the other provisions of this Section 7.1 shall not apply with respect to such issuances.

Right to Participate in Certain Sales of Additional Securities. The Company agrees that it will not sell or issue (i) any shares of capital stockstock of the Company, (ii) or other securities convertible into or exercisable or exchangeable for capital stock of the Company Company, or (iii) options, warrants or rights carrying any rights to purchase capital stock of the Company, Company unless the Company first submits a written offer to the Investors and the Shareholders (including for all purposes of this Section 6 each Investor and Stockholder who holds any shares permitted transferee of capital stock of the Company and each of their permitted transferees holding at least two percent (2%) of the fully-diluted capital stock of the Company (collectively, the "Offerees"a Shareholder pursuant to Section 5.1(b)) identifying the terms of the proposed sale (including price, number or aggregate principal amount of securities and all other material terms), and offers to each Offeree Investor and Shareholder the opportunity to purchase its Pro Rata Allotment Share (as hereinafter defined) of the securities (subject to increase for over-allotment if some Offerees Investors or Shareholders do not fully exercise their rights) on terms and conditions, including price, not less favorable to the Investors and Shareholders than those on which the Company proposes to sell such securities to a third party or parties. Each OffereeInvestor's or Shareholder's "Pro Rata AllotmentShare" of such securities shall be based on the ratio (as determined in accordance with Section 1.3 hereof) which the Shares then owned shares of Common Stock held by he, she or it bears to all of the then issued and outstanding Shares shares of Common Stock calculated on a fully-diluted basis giving effect to the conversion of convertible securities as of the date of such written offer. The Company's offer pursuant to this Section 3.1 the Investors and Shareholders shall remain open and irrevocable for a period of 30 20 days, and the recipients of such offer shall Investors and Shareholders who elect to purchase by giving written notice thereof shall have the first right to the Company within such 30-day period, including therein the maximum number of Shares take up and purchase any shares or other securities which the Offeree would purchase if other Offerees Investors or Shareholders do not elect to purchase, with the rights of electing Offerees to purchase such additional shares to be based upon on the relative holdings of Shares of the electing Offerees in the case of over-subscriptionpurchasers. Any securities so offered which are not purchased pursuant to such offer may be sold by the Company, Company but only on the terms and conditions set forth in the initial offeroffer to the Investors and Shareholders, at any time within 120 90 days following the termination of the above-referenced 3020-day period but may not be sold to any other person or on terms and conditions, including price, that are more favorable to the purchaser than those set forth in such offer or after such 12090-day period without renewed compliance with this Section 3.16.1. Notwithstanding the foregoing, the right Company may (i) issue options to purchase granted under this Article III shall be inapplicable its officers and employees with respect to any (i) options up to purchase 3,625,000 shares of its Common Stock granted or to be granted pursuant to the Company's 1998 Stock Plan (as defined in subject to adjustments for stock splits, stock dividends and the Purchase Agreement)like) and issue shares of its Common Stock upon the exercise of any such stock options, (ii) securities issued as a result of any stock split, stock dividend, reclassification or reorganization or similar event with respect to issue the Common Stock or (iii) shares of Common Stock issued upon conversion of the Preferred Stock or upon exercise of options granted pursuant to the Company's 1998 Stock Plan or options to purchase shares of Common Stock outstanding as of the date hereof.Conversion Shares,