Common use of Rights of Purchasers Clause in Contracts

Rights of Purchasers. (a) The Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (i) any shares of its Common Stock, (ii) any other equity securities of the Company, including, without limitation, shares of preferred stock, (iii) any option, warrant or other right to subscribe for, purchase or otherwise acquire any equity securities of the Company, or (iv) any debt securities convertible into capital stock of the Company (collectively, the "Offered Securities"), unless in each such case the Company shall have first complied with this Section 3.1. The Company shall deliver to each Purchaser a written notice of any proposed or intended issuance, sale or exchange of Offered Securities (the "Offer"), which Offer shall (i) identify and describe the Offered Securities, (ii) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (iii) identify the persons or entities (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (iv) offer to issue and sell to or exchange with such Purchaser (A) a pro rata portion of the Offered Securities determined by dividing (x) the aggregate number of shares of Common Stock then held by such Purchaser (giving effect to the conversion of all shares of convertible preferred stock then held and assuming the issuance of 1,285,527 shares (or 2,147,616 shares, as the case may be) of Common Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations or other similar recapitalizations affecting the Common Stock) in accordance with the Exit Special Adjustment provision of Article Fourth, B.4(i)(i) of the Company's Amended and Restated Certificate of Incorporation) by (y) the total number of shares of Common Stock then outstanding (giving effect to the conversion of all outstanding shares of convertible preferred stock and assuming the issuance of 1,285,527 shares (or 2,147,616 shares, as the case may be) of Common Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations or other similar recapitalizations affecting the Common Stock) in accordance with the Exit Special Adjustment provision of Article Fourth, B.4(i)(i) of the Company's Amended and Restated Certificate of Incorporation, and assuming, further, the issuance of all authorized shares under the Company's 1999 Stock Incentive Plan, as amended) (such pro rata portion of the Offered Securities, the "Basic Amount"), and (B) any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the "Undersubscription Amount"). (b) To accept an Offer, in whole or in part, a Purchaser must deliver a written notice to the Company prior to the end of the 30-day period of the Offer, setting forth the portion of the Purchaser's Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount (if any) that such Purchaser elects to purchase (the "Notice of Acceptance"). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts available for purchase, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all of the Basic Amounts available for purchase and the Basic Amounts subscribed for (the "Available Undersubscription Amount"), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Undersubscription Amount subscribed for by such Purchaser bears to the total Undersubscription Amounts subscribed for by all Purchasers, subject to rounding by the Board of Directors to the extent it deems reasonably necessary. (c) The Company shall have 90 days from the expiration of the period set forth in Section 3.1(b) above to issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Purchasers (the "Refused Securities"), but only to the offerees or purchasers described in the Offer (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) which are not more favorable, in the aggregate, to the acquiring person or persons or less favorable to the Company than those set forth in the Offer. (d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 3.1(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that the Purchaser elected to purchase pursuant to Section 3.1(b) above multiplied by a fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to Section 3.1(b) above prior to such reduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 3.1(a) above. (e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Purchasers shall acquire from the Company, and the Company shall issue to the Purchasers, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 3.1(d) above if the Purchasers have so elected, upon the terms and conditions specified in the Offer. The purchase by the Purchasers of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Purchasers of a purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Purchasers and their respective counsel. (f) Any Offered Securities not acquired by the Purchasers or other persons in accordance with Section 3.1(c) above may not be issued, sold or exchanged until they are again offered to the Purchasers under the procedures specified in this Agreement. (g) The rights of the Purchasers under this Section 3 shall not apply to: (1) Common Stock issued as a stock dividend to holders of Common Stock or upon any subdivision or combination of shares of Common Stock; (2) the issuance of any shares of Common Stock upon conversion of shares of convertible preferred stock; (3) the issuance of shares of Common Stock or the grant of options therefor, including shares issued upon exercise of options outstanding on the date of this Agreement (such number to be proportionately adjusted in the event of any stock splits, stock dividends, recapitalizations or similar events occurring on or after the date of this Agreement) to officers, directors, consultants and employees of the Company or any subsidiary pursuant to any plan, agreement or arrangement approved by a vote of not less than a majority of the members of the Board of Directors of the Company who are not employees of the Company or any of its subsidiaries; (4) securities issued solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; (5) shares of Common Stock sold by the Company in an underwritten public offering pursuant to an effective registration statement under the Securities Act; or (6) shares of Common Stock issued upon the conversion of any shares of preferred stock or upon the exercise of any options or warrants or other rights to subscribe for, purchase or otherwise acquire any equity securities of the Company. (h) The failure of any Purchaser to exercise its rights under this Section 3 shall not be deemed to be a waiver of its rights hereunder in connection with any subsequent issuance, sale or exchange, agreement to issue, sell or exchange, or reservation or setting aside for issuance, sale or exchange of Offered Securities.

Rights of Purchasers. (a) The Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (i) any shares of its Common Stock, (ii) any other equity securities of the Company, including, without limitation, shares of preferred stock, (iii) any option, warrant or other right to subscribe for, purchase or otherwise acquire any equity securities of the Company, or (iv) any debt securities convertible into capital stock of the Company (collectively, the "Offered Securities"), unless in each such case the Company shall have first complied with this Section 3.1. The Company shall deliver to each Purchaser a written notice of any proposed or intended issuance, sale or exchange of Offered Securities (the "Offer"), which Offer shall (i) identify and describe the Offered Securities, (ii) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (iii) identify the persons or entities (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (iv) offer to issue and sell to or exchange with such Purchaser (A) a pro rata portion of the Offered Securities determined by dividing (x) the aggregate number of shares of Common Stock then held by such Purchaser (giving effect to the conversion of all shares of convertible preferred stock then held and assuming the issuance of 1,285,527 shares (or 2,147,616 shares, as the case may be) of Common Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations or other similar recapitalizations affecting the Common Stock) in accordance with the Exit Special Adjustment provision of Article Fourth, B.4(i)(i) of the Company's Amended and Restated Certificate of Incorporationheld) by (y) the total number of shares of Common Stock then outstanding (giving effect to the conversion of all outstanding shares of convertible preferred stock and assuming the issuance of 1,285,527 shares (or 2,147,616 shares, as the case may be) of Common Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations or other similar recapitalizations affecting the Common Stock) in accordance with the Exit Special Adjustment provision of Article Fourth, B.4(i)(i) of the Company's Amended and Restated Certificate of Incorporation, and assuming, further, the issuance of all authorized shares under the Company's 1999 Stock Incentive Plan, as amendedstock) (such pro rata portion of the Offered Securities, the "Basic Amount"), and (B) any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the "Undersubscription Amount"). (b) To accept an Offer, in whole or in part, a Purchaser must deliver a written notice to the Company prior to 30 days after the end date of the 30-day period delivery of the Offer, setting forth the portion of the Purchaser's Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount (if any) that such Purchaser elects to purchase (the "Notice of Acceptance"). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts available for purchase, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription -------- ------- Amounts subscribed for exceed the difference between the total of all of the Basic Amounts available for purchase and the Basic Amounts subscribed for (the "Available Undersubscription Amount"), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Undersubscription Amount subscribed for by such Purchaser bears to the total Undersubscription Amounts subscribed for by all Purchasers, subject to rounding by the Board of Directors to the extent it deems reasonably necessary. (c) The Company shall have 90 days from the expiration of the period set forth in Section 3.1(b) above to issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has are not been given purchased by the Purchasers pursuant to Section 3.1(b) (the "Refused Securities"), but only to the offerees or purchasers described in the Offer (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) which are not more favorable, in the aggregate, to the acquiring person or persons or less favorable to the Company than those set forth in the Offer. (d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 3.1(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that the Purchaser elected to purchase pursuant to Section 3.1(b) above multiplied by a fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to Section 3.1(b) above prior to such reduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 3.1(a) above. (e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Purchasers shall acquire from the Company, and the Company shall issue to the Purchasers, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 3.1(d) above if the Purchasers have so elected, upon the terms and conditions specified in the Offer. The purchase by the Purchasers of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Purchasers of a purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Purchasers and their respective counsel. (f) Any Offered Securities not acquired by the Purchasers or other persons in accordance with Section 3.1(c) above may not be issued, sold or exchanged until they are again offered to the Purchasers under the procedures specified in this Agreement. (g) The rights of the Purchasers under this Section 3 shall not apply to: (1) Common Stock issued as a stock dividend to holders of Common Stock or upon any subdivision or combination of shares of Common Stock; (2) the issuance of any shares of Common Stock upon conversion of shares of convertible preferred stock; (3) the issuance of Common Stock upon exercise, conversion or exchange of stock or other securities convertible or exchangeable for shares of Common Stock, including, without limitation, options, warrants and other rights to acquire shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock; (4) the issuance, at any time after the original date of incorporation of the Company's predecessor (a Massachusetts corporation of the same name), of up to 2,049,161 shares of Common Stock, or at any time after the date hereof, of up to 1,613,411 shares of Common Stock, or such greater number as is approved by vote of not less than a majority of the non-employee directors of the Company, or the grant of options options, restricted stock or other stock-based awards therefor, including shares issued upon exercise of options outstanding on the date of this Agreement (such number to be proportionately adjusted in the event of any stock splits, stock dividends, recapitalizations or similar events occurring on or after the date of this Agreement) to officers, directors, consultants and employees of the Company or any subsidiary pursuant to any plan, agreement or arrangement approved by a vote of not less than a majority of the members Board of Directors of the Company (it being understood that any shares subject to options that expire or terminate unexercised or shares that are repurchased pursuant to a restricted stock agreement shall not count towards the maximum number set forth in this clause (3)); (5) any issuance of securities to a bank or other institution providing debt financing to the Company, if such issuance is approved by the Board of Directors of the Company who are not employees Company, including the affirmative vote or consent of one director nominated by the Company or any of its subsidiariesMajority Series A Holders, one director nominated by the Majority Series C Holders and one director nominated by the Majority Series D Holders; (46) securities issued solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; (57) any other issuance of securities solely for non-cash consideration, if such issuance is approved by the Board of Directors of the Company, including the affirmative vote or consent of one director nominated by the Majority Series A Holders, one director nominated by the Majority Series C Holders and one director nominated by the Majority Series D Holders, and such vote or consent makes specific reference to the waiver of the rights of the Purchasers under this Section 3; or (8) shares of Common Stock sold by the Company in an underwritten public offering pursuant to an effective registration statement under the Securities Act; or (6) shares of Common Stock issued upon the conversion of any shares of preferred stock or upon the exercise of any options or warrants or other rights to subscribe for, purchase or otherwise acquire any equity securities of the Company. (h) The failure of any Purchaser to exercise its rights under this Section 3 shall not be deemed to be a waiver of its rights hereunder in connection with any subsequent issuance, sale or exchange, agreement to issue, sell or exchange, or reservation or setting aside for issuance, sale or exchange of Offered Securities.

Rights of Purchasers. (a) The Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchangeexchange ("Issue"), (i) any shares of its Common Stock, (ii) any other equity securities of the Company, including, without limitation, shares of preferred stock, (iii) any option, warrant or other right to subscribe for, purchase or otherwise acquire any equity securities of the Company, or (iv) any debt securities convertible into capital stock of the Company (collectively, the "Offered Securities"), unless in each such case the Company shall have first complied with this Section 3.1. The Company shall deliver to each Purchaser a written notice of any proposed or intended issuance, sale or exchange of Offered Securities (the "Offer"), which Offer shall (i) identify and describe the Offered Securities, (ii) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (iii) identify the persons or entities (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (iv) offer to issue and sell to or exchange with such Purchaser (A) a pro rata portion of the Offered Securities determined by dividing (x) the aggregate number of shares of Common Stock then held by such Purchaser (giving effect to the conversion of all shares of convertible preferred stock then held and assuming the issuance of 1,285,527 shares (or 2,147,616 shares, as the case may be) of Common Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations or other similar recapitalizations affecting the Common Stock) in accordance with the Exit Special Adjustment provision of Article Fourth, B.4(i)(i) of the Company's Amended and Restated Certificate of Incorporationby each Purchaser) by (y) the total number of shares of Common Stock then outstanding (giving effect to the conversion of all outstanding shares of convertible preferred stock and assuming the issuance of 1,285,527 shares (or 2,147,616 shares, as the case may be) of Common Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations or other similar recapitalizations affecting the Common Stock) in accordance with the Exit Special Adjustment provision of Article Fourth, B.4(i)(i) of the Company's Amended and Restated Certificate of Incorporation, and assuming, further, the issuance of all authorized shares under the Company's 1999 Stock Incentive Plan, as amendedstock) (such pro rata portion of the Offered Securities, the "Basic Pro Rata Amount"), and (B) any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser . The Offer shall indicate it will purchase or acquire should the other Purchasers subscribe remain open for not less than their Basic Amounts (the "Undersubscription Amount")30 days. (b) To accept an Offer, in whole or in part, a Purchaser must deliver a written notice to the Company prior to 30 days after the end date of the 30-day period delivery of the Offer, setting forth the portion of the Purchaser's Basic Pro Rata Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount (if any) that such Purchaser elects to purchase (the "Notice of Acceptance"). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts available for purchase, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all of the Basic Amounts available for purchase and the Basic Amounts subscribed for (the "Available Undersubscription Amount"), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Undersubscription Amount subscribed for by such Purchaser bears to the total Undersubscription Amounts subscribed for by all Purchasers, subject to rounding by the Board of Directors to the extent it deems reasonably necessary. (c) The Company shall have 90 days from the expiration of the period set forth in Section 3.1(b) above to issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Purchasers (the "Refused Securities"), but only to the offerees or purchasers described in the Offer (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) which are not more favorable, in the aggregate, to the acquiring person or persons or less favorable to the Company than those set forth in the Offer. (d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 3.1(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that the Purchaser elected to purchase pursuant to Section 3.1(b) above multiplied by a fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to Section 3.1(b) above prior to such reduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 3.1(a) above. (e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Purchasers shall acquire from the Company, and the Company shall issue to the Purchasers, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 3.1(d) above if the Purchasers have so elected, upon the terms and conditions specified in the Offer. The purchase by the Purchasers of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Purchasers of a purchase agreement and any other final documentation relating to such Offered Securities reasonably satisfactory in form and substance to the Purchasers and their respective counsel. (f) Any Offered Securities not acquired by the Purchasers or other persons in accordance with Section 3.1(c) above may not be issued, sold or exchanged until they are again offered to the Purchasers under the procedures specified in this Agreement. (g) The rights of the Purchasers under this Section 3 shall not apply to: (1) Common Stock issued as a stock dividend to holders of Common Stock or upon any subdivision or combination of shares of Common Stock; (2) the issuance of any shares of Common Stock upon conversion of shares of convertible preferred stock; (3) the issuance of up to 3,387,771 shares of Common Stock or such greater number as is approved by vote of not less than a majority of the non-employee directors of the Company, or the grant of options therefor, including shares issued upon exercise of options outstanding on the date of this Agreement (such number to be proportionately adjusted in the event of any stock splits, stock dividends, recapitalizations or similar events occurring on or after the date of this Agreement) to officers, directors, consultants and employees of the Company or any subsidiary pursuant to any plan, agreement or arrangement approved by a vote of not less than a majority of the members of the Board of Directors of the Company who are (it being understood that any shares subject to options that expire or terminate unexercised shall not employees of count towards the Company or any of its subsidiariesmaximum number set forth in this clause (3)); (4) securities issued solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity;; or (5) shares of Common Stock sold by the Company in an underwritten public offering pursuant to an effective registration statement under the Securities Act; or (6) shares of Common Stock issued upon the conversion of any shares of preferred stock or upon the exercise of any options or warrants or other rights to subscribe for, purchase or otherwise acquire any equity securities of the Company. (h) The failure of any Purchaser to exercise its rights under this Section 3 shall not be deemed to be a waiver of its rights hereunder in connection with any subsequent issuance, sale or exchange, agreement to issue, sell or exchange, or reservation or setting aside for issuance, sale or exchange of Offered Securities.

Rights of Purchasers. (a) The Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (i) any shares of its Common Stock, (ii) any other equity securities of the Company, including, without limitation, shares of preferred stock, (iii) any option, warrant or other right to subscribe for, purchase or otherwise acquire any equity securities of the Company, or (iv) any debt securities convertible into capital stock of the Company (collectively, the "Offered Securities"), unless in each such case the Company shall have first complied with this Section 3.1. The Company shall deliver to each Purchaser a written notice of any proposed or intended issuance, sale or exchange of Offered Securities (the "Offer"), which Offer shall (i) identify and describe the Offered Securities, (ii) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (iii) identify the persons or entities (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (iv) offer to issue and sell to or exchange with such Purchaser (A) a pro rata portion of the Offered Securities determined by dividing (x) the aggregate number of shares of Common Stock then held by such Purchaser (giving effect to the conversion of all shares of convertible preferred stock then held and assuming the issuance of 1,285,527 shares (or 2,147,616 shares, as the case may be) of Common Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations or other similar recapitalizations affecting the Common Stock) in accordance with the Exit Special Adjustment provision of Article Fourth, B.4(i)(i) of the Company's Amended and Restated Certificate of Incorporationheld) by (y) the total number of shares of Common Stock then outstanding (giving effect to the conversion of all outstanding shares of convertible preferred stock and assuming the issuance of 1,285,527 shares (or 2,147,616 shares, as the case may be) of Common Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations or other similar recapitalizations affecting the Common Stock) in accordance with the Exit Special Adjustment provision of Article Fourth, B.4(i)(i) of the Company's Amended and Restated Certificate of Incorporation, and assuming, further, the issuance of all authorized shares under the Company's 1999 Stock Incentive Plan, as amendedstock) (such pro rata portion of the Offered Securities, the "Basic Amount"), and (B) any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the "Undersubscription Amount"). (b) To accept an Offer, in whole or in part, a Purchaser must deliver a written notice to the Company prior to 30 days after the end date of the 30-day period delivery of the Offer, setting forth the portion of the Purchaser's Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount (if any) that such Purchaser elects to purchase (the "Notice of Acceptance"). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts available for purchase, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription -------- ------- Amounts subscribed for exceed the difference between the total of all of the Basic Amounts available for purchase and the Basic Amounts subscribed for (the "Available Undersubscription Amount"), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Undersubscription Amount subscribed for by such Purchaser bears to the total Undersubscription Amounts subscribed for by all Purchasers, subject to rounding by the Board of Directors to the extent it deems reasonably necessary. (c) The Company shall have 90 days from the expiration of the period set forth in Section 3.1(b) above to issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Purchasers (the "Refused Securities"), but only to the offerees or purchasers described in the Offer (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) which are not more favorable, in the aggregate, to the acquiring person or persons or less favorable to the Company than those set forth in the Offer. (d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 3.1(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that the Purchaser elected to purchase pursuant to Section 3.1(b) above multiplied by a fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to Section 3.1(b) above prior to such reduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 3.1(a) above. (e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Purchasers shall acquire from the Company, and the Company shall issue to the Purchasers, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 3.1(d) above if the Purchasers have so elected, upon the terms and conditions specified in the Offer. The purchase by the Purchasers of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Purchasers of a purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Purchasers and their respective counsel. (f) Any Offered Securities not acquired by the Purchasers or other persons in accordance with Section 3.1(c) above may not be issued, sold or exchanged until they are again offered to the Purchasers under the procedures specified in this Agreement. (g) The rights of the Purchasers under this Section 3 shall not apply to: (1) Common Stock issued as a stock dividend to holders of Common Stock or upon any subdivision or combination of shares of Common Stock; (2) the issuance of any shares of Common Stock upon conversion of shares of convertible preferred stock; (3) the issuance of up to 9,727,081 shares of Common Stock or such greater number as is approved by vote of not less than a majority of the non- employee directors of the Company, or the grant of options or warrants therefor, including shares issued upon exercise of options outstanding on the date of this Agreement (such number to be proportionately adjusted in the event of any stock splits, stock dividends, recapitalizations or similar events occurring on or after the date of this Agreement) to officers, directors, consultants and employees of the Company or any subsidiary pursuant to any plan, agreement or arrangement approved by a vote of not less than a majority of the members of the Board of Directors of the Company who are (it being understood that any shares subject to options that expire or terminate unexercised shall not employees of count towards the Company or any of its subsidiariesmaximum number set forth in this clause (3)); (4) securities issued solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity;; or (5) shares of Common Stock sold by the Company in an underwritten public offering pursuant to an effective registration statement under the Securities Act; or (6) shares of Common Stock issued upon the conversion of any shares of preferred stock or upon the exercise of any options or warrants or other rights to subscribe for, purchase or otherwise acquire any equity securities of the Company. (h) The failure of any Purchaser to exercise its rights under this Section 3 shall not be deemed to be a waiver of its rights hereunder in connection with any subsequent issuance, sale or exchange, agreement to issue, sell or exchange, or reservation or setting aside for issuance, sale or exchange of Offered Securities.