Common use of Rights to Purchase Additional Securities Clause in Contracts

Rights to Purchase Additional Securities. (a) If the Company should decide to issue and sell additional shares of any capital stock of the Company or any options, warrants or other rights to subscribe for or to purchase any capital stock of the Company or any securities convertible into capital stock of the Company, other than (i) shares of Common Stock sold to the public pursuant to a registration statement filed under the Securities Act, if such offering is underwritten on a firm commitment basis by an underwriter, or group of underwriters represented by an underwriter or underwriters, which is a member of the New York Stock Exchange, (ii) options to purchase Common Stock or awards of Common Stock granted to employees or directors of the Company or to consultants to the Company or to the Company's employee stock purchase plan, as approved from time to time by the Board of Directors or a committee thereof, and shares of Common Stock issued upon the exercise of such options, (iii) shares of Common Stock issued upon the exercise of options, warrants or Convertible Securities outstanding at the Closing that were approved by the Board of Directors or a committee thereof (including without limitation the New GE Warrant), (iv) shares of Common Stock issued upon conversion of the Notes or exercise of the Warrants, (v) shares of Common Stock issued in a stock split or reclassification of, or as a stock dividend or other distribution on, then outstanding shares of Common Stock, (vi) shares of Common Stock issued in connection with any bona fide business acquisition by the Company or any Subsidiary which has been approved by the Board of Directors and is permitted by the terms of this Agreement, and (vii) shares of Common Stock, or options or warrants to purchase shares of Common Stock, issued to vendors or lessors of the Company or any Subsidiary, or shares of Common Stock issued upon the exercise of such options or warrants, provided that the issuance of such shares, options or warrants has been approved by the Board of Directors and is for other than primarily equity financing purposes, and further provided that the sum of the number of shares of Common Stock issued pursuant to this clause (vii) (other than upon the exercise of options or warrants), plus the number of shares of Common Stock subject to options or warrants issued pursuant to this clause (vii), in any 12-month period shall not exceed one percent of the shares of Common Stock outstanding on the date of this Agreement (appropriately adjusted to reflect stock splits, stock dividends, reorganizations, consolidations and similar changes hereafter effected) (all such capital stock, warrants, securities convertible into capital stock and other rights, other than securities referred to in clauses (i), (ii), (iii), (iv), (v), (vi) and (vii) above, being hereinafter sometimes collectively referred to as "Additional Securities"), the Company shall first offer to sell to each holder of Purchased Securities, upon the same terms and conditions as the Company is proposing to issue and sell such Additional Securities to others, such holder's pro rata share (as defined below) of such Additional Securities. Such offer shall be made by written notice given to each such holder and specifying therein the amount of the Additional Securities being offered, the purchase price and other terms of such offer. Each such holder shall have a period of 15 days from and after the date of receipt by it of such notice within which to accept such offer. If a holder of Purchased Securities elects to accept such offer in whole or in part, such holder shall so accept by written notice to the Company given within such 15-day period. If a holder of Purchased Securities fails to accept such offer in whole or in part within such 15-day period, any of such Additional Securities not purchased by such holder pursuant to such offer may be offered for sale to others by the Company for a period of 120 days from the last day of such 15-day period, but only on the same terms and conditions as set forth in the initial offer to such holder, free and clear of the restrictions imposed by this Section 8.12. (b) For purposes of the previous paragraph, a holder's "pro rata share" is the number of shares of Additional Securities (rounded to the nearest whole share) as is equal to the product of (i)(A) the number of shares of Common Stock issued, or issuable upon the exercise or conversion of rights, options, warrants or Convertible Securities without the payment of any additional cash consideration or with the payment of a nominal cash consideration, as the case may be (collectively, "Fully Paid Securities"), to such holder immediately prior to the issuance of the Additional Securities being offered divided by (B) the total number of Fully Paid Securities issued or issuable by the Company immediately prior to the issuance of the Additional Securities, multiplied by (ii)(A) if so approved by the affirmative vote of the holders of a Majority in Interest of the Purchased Securities, that portion of the offering of Additional Securities that remains after considering binding commitments to purchase that have been received from persons other than the holders of the Purchased Securities, or (B) if not so approved, the entire offering of Additional Securities. (c) The rights of a holder of Purchased Securities under this Section 8.12 to acquire a pro rata share of any Additional Securities (i) may be assigned in whole or in part by such holder to any of its affiliates, and (ii) shall terminate at the close of business on the fifth anniversary of the Closing Date.

Rights to Purchase Additional Securities. (a) If the Company should decide to issue and sell additional shares of For so long as any capital stock of the Company or Investor Party holds any options, warrants or other rights to subscribe for or to purchase any capital stock of the Company or any securities convertible into capital stock of the Company, other than (i) shares of Common Stock sold to the public pursuant to a registration statement filed under the Securities Act, if such offering is underwritten on a firm commitment basis by an underwriter, or group of underwriters represented by an underwriter or underwriters, which is a member of the New York Stock Exchange, (ii) options to purchase Common Stock or awards of Common Stock granted to employees or directors of the Company or to consultants to the Company or to the Company's employee stock purchase plan, as approved from time to time by the Board of Directors or a committee thereof, and shares of Common Stock issued upon the exercise of such options, (iii) shares of Common Stock issued upon the exercise of options, warrants or Convertible Securities outstanding at the Closing that were approved by the Board of Directors or a committee thereof (including without limitation the New GE Warrant), (iv) shares of Common Stock issued upon conversion of the Notes or exercise of the Warrants, (v) shares of Common Stock issued in a stock split or reclassification of, or as a stock dividend or other distribution on, then outstanding shares of Common Purchased Stock, (vi) shares of Common Stock issued in connection with any bona fide business acquisition by the Company or any Subsidiary which has been approved by the Board of Directors and is permitted by the terms of this Agreement, and (vii) shares of Common Preferred Purchased Stock, or options or warrants to purchase shares of Common New Preferred Stock, issued to vendors or lessors of the Company or any Subsidiary, Warrants or shares of Common Stock issued upon the exercise of the Warrants (including, in each case, any securities into which such options securities shall have been changed, any securities resulting from any reclassification or warrants, provided that the issuance recapitalization of such sharessecurities and all stock dividends and distributions thereon), options or warrants has been approved by the Board of Directors and is for other than primarily equity financing purposes, and further provided that the sum of the number of shares of prior to issuing any New Common Stock issued pursuant after the Closing Date to this clause any Person (vii) (other than upon the exercise of options or warrants), plus the number of shares of a "New Common Stock subject to options or warrants issued pursuant to this clause (vii), in any 12-month period shall not exceed one percent of the shares of Common Stock outstanding on the date of this Agreement (appropriately adjusted to reflect stock splits, stock dividends, reorganizations, consolidations and similar changes hereafter effected) (all such capital stock, warrants, securities convertible into capital stock and other rights, other than securities referred to in clauses (i), (ii), (iii), (iv), (v), (vi) and (vii) above, being hereinafter sometimes collectively referred to as "Additional SecuritiesOffer"), the Company shall first offer each of the Investor Parties then owning any Common Purchased Stock, Preferred Purchased Stock, New Preferred Stock, Warrants or shares of Common Stock issued upon exercise of the Warrants (including, in each case, any securities into which such securities shall have been changed, any securities resulting from any reclassification or recapitalization of such securities and all stock dividends and distributions thereon) (the "Investor Stockholders") an opportunity to sell purchase in cash any or all of its Pro Rata portion (determined as among all the Investor Stockholders before giving effect to each holder the issuance of Purchased Securities, upon such New Common Stock as of the date of such New Common Stock Offer) of such New Common Stock on the same terms and conditions as the New Common Stock being offered and, if such New Common Stock is to be issued as a part of a unit of securities, the Company is proposing shall offer each of the Investor Stockholders an opportunity to issue and sell such Additional Securities to others, such holder's pro rata share purchase any or all of its Pro Rata portion (determined as defined belowprovided above) of such Additional Securities. Such offer shall be made by written notice given to each such holder and specifying therein unit of securities (together with the amount of the Additional Securities being offeredNew Common Stock, the purchase price and other terms of such offer. Each such holder shall have a period of 15 days from and after the date of receipt by it of such notice within which to accept such offer. If a holder of Purchased Securities elects to accept such offer in whole or in part, such holder shall so accept by written notice to the Company given within such 15-day period. If a holder of Purchased Securities fails to accept such offer in whole or in part within such 15-day period, any of such Additional Securities not purchased by such holder pursuant to such offer may be offered for sale to others by the Company for a period of 120 days from the last day of such 15-day period, but only "New Common Stock Units") on the same terms and conditions as set forth in the initial offer to New Common Stock Units being offered. The Company shall make such holder, free and clear New Common Stock Offer by providing each of the restrictions imposed by this Section 8.12. Investor Stockholders with a notice (bthe "New Common Stock Notice") For purposes setting forth (i) each of the previous paragraph, a holder's "pro rata share" is the number Investor Stockholders' Pro Rata portion of shares of Additional Securities (rounded to the nearest whole share) as is equal to the product of (i)(A) the number of shares of such New Common Stock issued, or issuable upon the exercise or conversion of rights, options, warrants or Convertible Securities without the payment of any additional cash consideration or with the payment of a nominal cash considerationsuch New Common Stock Units, as the case may be be, (collectively, "Fully Paid Securities"), to such holder immediately prior to the issuance of the Additional Securities being offered divided by (Bii) the total number of Fully Paid Securities issued or issuable by the Company immediately prior cash consideration to the issuance of the Additional Securities, multiplied by (ii)(A) if so approved by the affirmative vote of the holders of a Majority in Interest of the Purchased Securities, that portion of the offering of Additional Securities that remains after considering binding commitments to purchase that have been received from persons other than the holders of the Purchased Securities, or (B) if not so approved, the entire offering of Additional Securities. (c) The rights of a holder of Purchased Securities under this Section 8.12 to acquire a pro rata be paid for each share of any Additional Securities (i) New Common Stock or each New Common Stock Unit, as the case may be assigned in whole or in part by such holder to any of its affiliatesbe, and (iiiii) shall terminate at the close all other material terms of business on the fifth anniversary of the Closing Datesuch New Common Stock Offer.

Rights to Purchase Additional Securities. (a) If the Company should ---------------------------------------- decide to issue and sell additional shares of any capital stock of the Company or any optionswarrants, warrants securities convertible into capital stock of the Company or other rights to subscribe for or to purchase any capital stock of the Company or any securities convertible into capital stock of the Company, other than (ia) shares of Common Stock sold to the public pursuant to a registration statement filed under the Securities Act, if such offering is underwritten on a firm commitment basis by an underwriter, or group of underwriters represented by an underwriter or underwriters, which is a member of the New York Stock Exchange, (iib) (i) options to purchase Common Stock or awards of Common Stock granted to employees or directors of the Company or to consultants to the Company or to the Company's employee stock purchase plan, as approved from time to time by the Board of Directors or a committee thereof, and shares of Common Stock awarded or issued upon the exercise of such options, (iii) shares of Common Stock issued upon the exercise of options, warrants or Convertible Securities outstanding at the Closing that were approved options granted pursuant to employee and consultant benefit plans adopted by the Board of Directors or a committee thereof (including without limitation the New GE Warrant), (iv) shares of Common Stock issued upon conversion of the Notes or exercise of the Warrants, (v) shares of Common Stock issued in a stock split or reclassification of, or as a stock dividend or other distribution on, then outstanding shares of Common Stock, (vi) shares of Common Stock issued in connection with any bona fide business acquisition by the Company or any Subsidiary which has been approved by the Board of Directors and is permitted by the terms of this AgreementCompany, and (vii) shares of Common Stock, or options or warrants to purchase shares of Common Stock, issued to vendors or lessors of the Company or any Subsidiary, or shares of Common Stock issued upon the exercise grant of such options or warrantsthemselves, provided that the issuance of such shares, options or warrants has been approved by the Board of Directors and is for other than primarily equity financing purposes, and further provided that the sum of the aggregate number of shares of Common Stock thus awarded and issued and issuable pursuant to this clause (vii) (other than upon the exercise of all such options or warrants), plus the number of shares of Common Stock subject to options or warrants issued pursuant to this clause (vii), in any 12-month period shall not exceed one percent be in excess of the shares of Common Stock outstanding on the date of this Agreement 1,500,000 (appropriately adjusted to reflect stock splits, stock dividends, reorganizations, consolidations and similar changes hereafter effectedeffected after the Phase I Closing Date), or (ii) up to 24,000 shares of Common Stock issued upon exercise of an option granted to its Minneapolis landlord (appropriately adjusted in accordance with the terms thereof), (c) shares of Common Stock issued upon conversion of the Company's outstanding Series A Convertible Subordinated Debentures (appropriately adjusted in accordance with the terms thereof), (d) shares of Series A Preferred Shares issued upon exercise of warrants to Xxxxx Xxxxxxx Inc. for 112,000 shares and to Xxxxxxx X. Xxxxxxx for 44,800 shares (the "1996 Warrants") or shares of Common Stock issued upon conversion of such Series ------------- A Preferred Shares (appropriately adjusted in accordance with the terms thereof) (the "1996 ---- Warrant Stock"), (e) shares of Common Stock issued upon conversion of the Series ------------- A Preferred Shares and the Series B Preferred Shares, (f) warrants to purchase up to 50,000 shares of Series B Preferred Shares issued to Xxxxx Xxxxxxx at the initial Closing of the 1997 Stock Purchase Agreement ("1997 Warrants"), any ------------- shares of Series B Preferred Shares issued upon the exercise of such warrants, and any shares of Common Stock issued upon conversion of such Series B Preferred Shares (appropriately adjusted in accordance with the terms thereof) (the "1997 ---- Warrant Stock"), (g) warrants to purchase up to 241,666 shares of Common Stock ------------- issued to Sirrom Capital Corporation and up to 132,917 shares of Common Stock issued to Regent Capital Partners, L.P. and any shares of Common Stock issued upon the exercise of such warrants (appropriately adjusted in accordance with the terms thereof) (the "Financing Warrants"), (h) shares of Series C Preferred ------------------ Stock issued upon the consummation of any Phase II Closing, (i) warrants to purchase 100,000 shares of Common Stock issued to the Series B Preferred Shareholders as of October 31, 1997 and any shares of Common Stock issued upon the exercise of such warrants (appropriately adjusted in accordance with the terms thereof), (j) Series C Preferred Shares or Common Shares issued upon conversion of the CVRs or (k) shares of Common Stock issued upon conversion of the Series C Preferred Shares (all such capital stock, warrants, securities convertible into capital stock and other rights, other than securities referred to in clauses (a), (b), (c), (d), (e), (f), (g), (h), (i), (ii), (iii), (iv), (v), (vij) and (viik) above, being hereinafter sometimes collectively referred to as "Additional Securities"), the --------------------- Company shall first offer to sell to each holder of Purchased Securitiesthe Preferred Shareholders, or an Affiliate thereof, upon the same terms and conditions as the Company is proposing to issue and sell such Additional Securities to others, such holderPreferred Shareholder's pro rata share (as defined below) of such Additional Securities. Such offer shall be made by written notice given to each such holder Preferred Shareholder and specifying therein the amount of the Additional Securities being offered, the purchase price and other terms of such offer. Each such holder Such Preferred Shareholder shall have a period of 15 30 days from and after the date of receipt by it of such notice within which to accept such offer. If a holder of Purchased Securities Preferred Shareholder elects to accept such offer in whole or in part, such holder Preferred Shareholder shall so accept by written notice to the Company given within such 1530-day period. If a holder of Purchased Securities Preferred Shareholder fails to accept such offer in whole or in part within such 1530-day period, any of such Additional Securities not purchased by such holder Preferred Shareholder pursuant to such offer may be offered for sale to others by the Company for a period of 120 90 days from the last day of such 1530-day period, but only on the same terms and conditions as set forth in the initial offer to such holderPreferred Shareholder, free and clear of the restrictions imposed by this Section 8.129.16. (b) For purposes of the previous paragraph, a holder's "pro rata share" is the number of shares of Additional Securities (rounded to the nearest whole share) as is equal to the product of (i)(Ai) the number of shares of Common Stock issued, or issuable upon the exercise or conversion of rights, options, warrants options or Convertible Securities without the payment of any additional cash consideration or with the payment of a nominal cash consideration, as the case may be (collectively, "Fully Paid Securities"), to such holder Preferred Shareholder --------------------- immediately prior to the issuance of the Additional Securities being offered divided by (Bii) the total number of Fully Paid Securities issued or issuable by the Company immediately prior to the issuance of the Additional Securities, multiplied by (ii)(Ab)(i) if so approved by the affirmative vote of the holders of a Majority in Interest two-thirds of the shares of Purchased Stock (as hereinafter defined) held by Preferred Shareholders entitled by this Section 9.16 to purchase a portion of such Additional Securities, that portion of the offering of Additional Securities that remains after considering binding commitments to purchase that have been received from persons other than the holders of the Purchased SecuritiesPreferred Shareholders, or (Bii) if not so approved, the entire offering of Additional Securities. (c) The rights of a holder of Purchased Securities under this Section 8.12 to acquire a pro rata share of any Additional Securities (i) may be assigned in whole or in part by such holder to any of its affiliates, and (ii) shall terminate at the close of business on the fifth anniversary of the Closing Date.

Rights to Purchase Additional Securities. (a) If the Company should decide to issue and sell additional shares of any capital stock of the Company or any optionswarrants, warrants securities convertible into capital stock of the Company or other rights to subscribe for or to purchase any capital stock of the Company or any securities convertible into capital stock of the Company, other than (ia) shares of Common Stock sold to the public pursuant to a registration statement filed under the Securities Act, if such offering is underwritten on a firm commitment basis by an underwriter, or group of underwriters represented by an underwriter or underwriters, which is a member of the New York Stock Exchange, (iib) options to purchase Common Stock or awards of Common Stock granted to employees or directors of the Company or to consultants to the Company or to the Company's employee stock purchase plan, as approved from time to time by the Board of Directors or a committee thereof, and shares of Common Stock awarded or issued upon the exercise of such options, (iii) shares of Common Stock issued upon the exercise of options, warrants or Convertible Securities outstanding at the Closing that were approved options granted pursuant to employee and consultant benefit plans adopted by the Board of Directors or a committee thereof (including without limitation the New GE Warrant), (iv) shares of Common Stock issued upon conversion of the Notes or exercise of the Warrants, (v) shares of Common Stock issued in a stock split or reclassification of, or as a stock dividend or other distribution on, then outstanding shares of Common Stock, (vi) shares of Common Stock issued in connection with any bona fide business acquisition by the Company or any Subsidiary which has been approved by the Board of Directors and is permitted by the terms of this AgreementCompany, and (vii) shares of Common Stock, or options or warrants to purchase shares of Common Stock, issued to vendors or lessors of the Company or any Subsidiary, or shares of Common Stock issued upon the exercise grant of such options or warrantsthemselves, provided that the issuance of such shares, options or warrants has been approved by the Board of Directors and is for other than primarily equity financing purposes, and further provided that the sum of the aggregate number of shares of Common Stock thus awarded and issued and issuable pursuant to this clause (vii) (other than upon the exercise of all such options or warrants), plus the number of shares of Common Stock subject to options or warrants issued pursuant to this clause (vii), in any 12-month period shall not exceed one percent be in excess of the shares of Common Stock outstanding on the date of this Agreement 650,000 (appropriately adjusted to reflect stock splits, stock dividends, reorganizations, consolidations and similar changes hereafter effectedeffected after the Closing Date), (c) shares of Common Stock issued upon conversion of the Company's outstanding Series A Convertible Debentures, (d) shares of Series A Preferred Shares issued upon exercise of warrants to Xxxxx Xxxxxxx Inc. for 112,000 shares and to Xxxxxxx X. Xxxxxxx for 44,800 shares or shares of Common Stock issued upon conversion of such Series A Preferred Shares, (e) shares of Common Stock issued upon conversion of the Series A Preferred Shares and the Series B Preferred Shares, (f) warrants to purchase up to 50,000 shares of the Company's series B convertible preferred stock to be issued to Xxxxx Xxxxxxx at the initial Closing, any shares of the Company's series B convertible preferred stock issued upon the exercise of such warrants, and any shares of Common Stock issued upon conversion of such Series B Convertible Preferred Stock, and (g) warrants to purchase up to 193,332 shares of Common Stock to be issued to subordinated debt lenders after the initial Closing and any shares of Common Stock issued up the exercise of such warrants, (all such capital stock, warrants, securities convertible into capital stock and other rights, other than securities referred to in clauses (ia), (iib), (iiic), (ivd), (ve), (vif) and (viig) above, being hereinafter sometimes collectively referred to as "Additional Securities"), the Company shall first offer to sell to each holder of Purchased Securitiesthe Preferred Shareholders, or an Affiliate thereof, upon the same terms and conditions as the Company is proposing to issue and sell such Additional Securities to others, such holderPreferred Shareholder's pro rata share (as defined below) of such Additional Securities. Such offer shall be made by written notice given to each such holder Preferred Shareholder and specifying therein the amount of the Additional Securities being offered, the purchase price and other terms of such offer. Each such holder Such Preferred Shareholder shall have a period of 15 30 days from and after the date of receipt by it of such notice within which to accept such offer. If a holder of Purchased Securities Preferred Shareholder elects to accept such offer in whole or in part, such holder Preferred Shareholder shall so accept by written notice to the Company given within such 1530-day period. If a holder of Purchased Securities Preferred Shareholder fails to accept such offer in whole or in part within such 1530-day period, any of such Additional Securities not purchased by such holder Preferred Shareholder pursuant to such offer may be offered for sale to others by the Company for a period of 120 90 days from the last day of such 1530-day period, but only on the same terms and conditions as set forth in the initial offer to such holderPreferred Shareholder, free and clear of the restrictions imposed by this Section 8.128.16. (b) For purposes of the previous paragraph, a holder's "pro rata share" is the number of shares of Additional Securities (rounded to the nearest whole share) as is equal to the product of (i)(Ai) the number of shares of Common Stock issued, or issuable upon the exercise or conversion of rights, options, warrants options or Convertible Securities without the payment of any additional cash consideration or with the payment of a nominal cash consideration, as the case may be (collectively, "Fully Paid Securities"), to such holder Preferred Shareholder immediately prior to the issuance of the Additional Securities being offered divided by (Bii) the total number of Fully Paid Securities issued or issuable by the Company immediately prior to the issuance of the Additional Securities, multiplied by (ii)(Ab)(i) if so approved by the affirmative vote of the holders of a Majority in Interest two-thirds of the shares of Purchased Stock (as hereinafter defined) held by Preferred Shareholders entitled by this Section 8.16 to purchase a portion of such Additional Securities, that portion of the offering of Additional Securities that remains after considering binding commitments to purchase that have been received from persons other than the holders of the Purchased SecuritiesPreferred Shareholders, or (Bii) if not so approved, the entire offering of Additional Securities. (c) The rights of a holder of Purchased Securities under this Section 8.12 to acquire a pro rata share of any Additional Securities (i) may be assigned in whole or in part by such holder to any of its affiliates, and (ii) shall terminate at the close of business on the fifth anniversary of the Closing Date.

Rights to Purchase Additional Securities. (a) If the Company should decide to issue and sell additional shares of For so long as any capital stock of the Company or Investor Party holds any options, warrants or other rights to subscribe for or to purchase any capital stock of the Company or any securities convertible into capital stock of the Company, other than (i) shares of Common Stock sold to the public pursuant to a registration statement filed under the Securities Act, if such offering is underwritten on a firm commitment basis by an underwriter, or group of underwriters represented by an underwriter or underwriters, which is a member of the New York Stock Exchange, (ii) options to purchase Common Stock or awards of Common Stock granted to employees or directors of the Company or to consultants to the Company or to the Company's employee stock purchase plan, as approved from time to time by the Board of Directors or a committee thereof, and shares of Common Stock issued upon the exercise of such options, (iii) shares of Common Stock issued upon the exercise of options, warrants or Convertible Securities outstanding at the Closing that were approved by the Board of Directors or a committee thereof (including without limitation the New GE Warrant), (iv) shares of Common Stock issued upon conversion of the Notes or exercise of the Warrants, (v) shares of Common Stock issued in a stock split or reclassification of, or as a stock dividend or other distribution on, then outstanding shares of Common Purchased Stock, (vi) shares of Common Stock issued in connection with any bona fide business acquisition by the Company or any Subsidiary which has been approved by the Board of Directors and is permitted by the terms of this Agreement, and (vii) shares of Common Preferred Purchased Stock, or options or warrants to purchase shares of Common New Preferred Stock, issued to vendors or lessors of the Company or any Subsidiary, Warrants or shares of Common Stock issued upon the exercise of the Warrants (including, in each case, any securities into which such options securities shall have been changed, any securities resulting from any reclassification or warrants, provided that the issuance recapitalization of such sharessecurities and all stock dividends and distributions thereon), options or warrants has been approved by the Board of Directors and is for other than primarily equity financing purposes, and further provided that the sum of the number of shares of prior to issuing any New Common Stock issued pursuant after the Closing Date to this clause any Person (vii) (other than upon the exercise of options or warrants), plus the number of shares of a "New Common Stock subject to options or warrants issued pursuant to this clause (vii), in any 12-month period shall not exceed one percent of the shares of Common Stock outstanding on the date of this Agreement (appropriately adjusted to reflect stock splits, stock dividends, reorganizations, consolidations and similar changes hereafter effected) (all such capital stock, warrants, securities convertible into capital stock and other rights, other than securities referred to in clauses (i), (ii), (iii), (iv), (v), (vi) and (vii) above, being hereinafter sometimes collectively referred to as "Additional SecuritiesOffer"), the Company shall first offer each of the Investor Parties then owning any Common Purchased Stock, Preferred Purchased Stock, New Preferred Stock, Warrants or shares of Common Stock issued upon exercise of the Warrants (including, in each case, any securities into which such securities shall have been changed, any securities resulting from any reclassification or recapitalization of such securities and all stock dividends and distributions thereon) (the "Investor Stockholders") an opportunity to sell purchase in cash any or all of its Pro Rata portion (determined as among all the Investor Stockholders before giving effect to each holder the issuance of Purchased Securities, upon such New Common Stock as of the date of such New Common Stock Offer) of such New Common Stock on the same terms and conditions as the New Common Stock being offered and, if such New Common Stock is to be issued as a part of a unit of securities, the Company is proposing shall offer each of the Investor Stockholders an opportunity to issue and sell such Additional Securities to others, such holder's pro rata share purchase any or all of its Pro Rata portion (determined as defined belowprovided above) of such Additional Securities. Such offer shall be made by written notice given to each such holder and specifying therein unit of securities (together with the amount of the Additional Securities being offeredNew Common Stock, the purchase price and other terms of such offer. Each such holder shall have a period of 15 days from and after the date of receipt by it of such notice within which to accept such offer. If a holder of Purchased Securities elects to accept such offer in whole or in part, such holder shall so accept by written notice to the Company given within such 15-day period. If a holder of Purchased Securities fails to accept such offer in whole or in part within such 15-day period, any of such Additional Securities not purchased by such holder pursuant to such offer may be offered for sale to others by the Company for a period of 120 days from the last day of such 15-day period, but only "New Common Stock Units") on the same terms and conditions as set forth in the initial offer to New Common Stock Units being offered. The Company shall 32 39 make such holder, free and clear New Common Stock Offer by providing each of the restrictions imposed by this Section 8.12. Investor Stockholders with a notice (bthe "New Common Stock Notice") For purposes setting forth (i) each of the previous paragraph, a holder's "pro rata share" is the number Investor Stockholders' Pro Rata portion of shares of Additional Securities (rounded to the nearest whole share) as is equal to the product of (i)(A) the number of shares of such New Common Stock issued, or issuable upon the exercise or conversion of rights, options, warrants or Convertible Securities without the payment of any additional cash consideration or with the payment of a nominal cash considerationsuch New Common Stock Units, as the case may be be, (collectively, "Fully Paid Securities"), to such holder immediately prior to the issuance of the Additional Securities being offered divided by (Bii) the total number of Fully Paid Securities issued or issuable by the Company immediately prior cash consideration to the issuance of the Additional Securities, multiplied by (ii)(A) if so approved by the affirmative vote of the holders of a Majority in Interest of the Purchased Securities, that portion of the offering of Additional Securities that remains after considering binding commitments to purchase that have been received from persons other than the holders of the Purchased Securities, or (B) if not so approved, the entire offering of Additional Securities. (c) The rights of a holder of Purchased Securities under this Section 8.12 to acquire a pro rata be paid for each share of any Additional Securities (i) New Common Stock or each New Common Stock Unit, as the case may be assigned in whole or in part by such holder to any of its affiliatesbe, and (iiiii) shall terminate at the close all other material terms of business on the fifth anniversary of the Closing Datesuch New Common Stock Offer.

Rights to Purchase Additional Securities. (a) If The Company hereby grants to each Investor a right to purchase up to such Investor's "pro rata share" (as hereinafter defined) of any New Securities (as hereinafter defined) which the Company should decide may, from time to issue time, propose to sell and sell additional issue. A "pro rata share", for purposes hereof, is the ratio that (x) the aggregate number of Common Shares held by such Investor and its Affiliates as of such date (assuming the exercise, conversion or exchange of all Options, Warrants or convertible securities held by such Investor upon conversion of, including the Series B Shares and Warrants) bears to (y) the sum of (i) the total number of Common Shares then outstanding as of such date and (ii) the total number of such shares issuable upon exercise, conversion of Series B Shares or exchange of all Options, Warrants and convertible securities held by all Investors as of such date. (b) Except as set forth below, "New Securities" shall mean any shares of any capital stock of the Company or any options, warrants or other rights to subscribe for or to purchase any capital stock of the Company or any securities convertible into capital stock of the Company, other than (i) shares of including Common Stock sold to the public pursuant to a registration statement filed under the Securities ActShares and preferred shares, if such offering is underwritten on a firm commitment basis by an underwriter, whether now authorized or group of underwriters represented by an underwriter or underwriters, which is a member of the New York Stock Exchange, (ii) options to purchase Common Stock or awards of Common Stock granted to employees or directors of the Company or to consultants to the Company or to the Company's employee stock purchase plan, as approved from time to time by the Board of Directors or a committee thereofnot, and shares of Common Stock issued upon the exercise of such optionsrights, (iii) shares of Common Stock issued upon the exercise of options, warrants or Convertible Securities outstanding at the Closing that were approved by the Board of Directors or a committee thereof (including without limitation the New GE Warrant), (iv) any other agreements to purchase such shares of Common Stock issued upon conversion of the Notes or exercise of the Warrants, (v) shares of Common Stock issued in a stock split or reclassification of, or as a stock dividend or other distribution on, then outstanding shares of Common Stock, (vi) shares of Common Stock issued in connection with any bona fide business acquisition by the Company or any Subsidiary which has been approved by the Board of Directors and is permitted by the terms of this Agreement, and (vii) shares of Common Stock, or options or warrants to purchase shares of Common Stock, issued to vendors or lessors of the Company or any Subsidiary, or shares of Common Stock issued upon the exercise of such options or warrants, provided that the issuance of such shares, options or warrants has been approved by the Board of Directors and is for other than primarily equity financing purposes, and further provided that the sum of the number of shares of Common Stock issued pursuant to this clause (vii) (other than upon the exercise of options or warrants), plus the number of shares of Common Stock subject to options or warrants issued pursuant to this clause (vii), in any 12-month period shall not exceed one percent of the shares of Common Stock outstanding on the date of this Agreement (appropriately adjusted to reflect stock splits, stock dividends, reorganizations, consolidations and similar changes hereafter effected) (all such capital stock, warrantsand securities of any type whatsoever. Notwithstanding the foregoing, securities convertible into capital stock and other rights, other than securities referred to in clauses New Securities does not include: (i), (ii), (iii), (iv), (v), (vi) and (vii) above, being hereinafter sometimes collectively referred to as "Additional Securities"), the Company shall first offer to sell to each holder of Purchased Securities, upon the same terms and conditions as the Company is proposing to issue and sell such Additional Securities to others, such holder's pro rata share (as defined below) of such Additional Securities. Such offer shall be made by written notice given to each such holder and specifying therein the amount of the Additional Securities being offered, the purchase price and other terms of such offer. Each such holder shall have a period of 15 days from and after the date of receipt by it of such notice within which to accept such offer. If a holder of Purchased Securities elects to accept such offer in whole or in part, such holder shall so accept by written notice to the Company given within such 15-day period. If a holder of Purchased Securities fails to accept such offer in whole or in part within such 15-day period, any of such Additional Securities not purchased by such holder pursuant to such offer may be offered for sale to others by the Company for a period of 120 days from the last day of such 15-day period, but only on the same terms and conditions as set forth in the initial offer to such holder, free and clear of the restrictions imposed by this Section 8.12. (b) For purposes of the previous paragraph, a holder's "pro rata share" is the number of shares of Additional Securities (rounded to the nearest whole share) as is equal to the product of (i)(A) the number of shares of Common Stock issued, or securities issuable upon the exercise or conversion of rights, options, warrants or Convertible Securities without other securities which are outstanding as of the payment of any additional cash consideration or with the payment of a nominal cash consideration, as the case may be date hereof and set forth on Schedule 1; (collectively, "Fully Paid Securities"), to such holder immediately prior ii) securities offered to the issuance public generally pursuant to an underwritten public offering and an effective registration statement under the Act; (iii) securities issued pursuant to the acquisition of the Additional Securities being offered divided by (B) the total number of Fully Paid Securities issued or issuable another Person by the Company immediately prior which is not an Affiliate of the Company by means of a merger, purchase of shares, purchase of substantially all of the assets or other reorganization; (iv) up to 5,750,000 Common Share securities issued to employees, officers and directors of, and consultants to, the Company, with the approval of the Board of Directors of the Company pursuant to the issuance of Stock Incentive Plan; (v) stock issued pursuant to any rights or agreements including, without limitation, convertible securities, options and warrants, provided that the Additional Securities, multiplied by (ii)(A) if so approved preemptive rights established hereby apply with respect to the initial sale or grant by the affirmative vote Company of the holders of a Majority such rights or agreements; and (vi) securities issued in Interest of the Purchased Securities, that portion of the offering of Additional Securities that remains after considering binding commitments to purchase that have been received from persons other than the holders of the Purchased Securities, connection with any strategic partnership or (B) if not so approvedjoint venture, the entire offering primary purpose of Additional Securitieswhich is not to raise equity capital. (c) The rights In the event the Company proposes to undertake an issuance of a holder New Securities, it shall give each Investor written notice of Purchased Securities under this Section 8.12 its intention, describing the type of New Securities, and the price and general terms upon which the Company proposes to acquire a issue the same. Each Investor shall have twenty (20) business days from the date any such notice is given (the "Preemption Period") to agree to purchase all or any part of its pro rata share of such New Securities for the price and upon the general terms specified in the notice, by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. (d) If any Additional Investor fails so to notify the Company, then all rights of such Investor to purchase New Securities under the offer and notice in question shall terminate. If any Investor elects not to purchase all of its pro rata share of the New Securities or fails to notify the Company of its intent to purchase such New Securities prior to the expiration of the Preemption Period, the Company shall promptly notify the remaining Investors that such New Securities are available for purchase by the remaining Investors, on a "pro rata share" basis, in accordance herewith. In such event, each of the remaining Investors shall have five (5) business days after receipt of such notice to determine whether to purchase any of such New Securities. (e) In the event the Investors have not in the aggregate elected to purchase all of such New Securities which are being offered, the Company shall have ninety (90) days from the date of expiration of the Preemption Period to sell the New Securities not elected to be purchased by the Investors at the price and upon general terms not materially no more favorable to the third party purchaser(s) of such New Securities than specified in the notice given by the Company. In the event the Company has not sold the New Securities within such ninety (90) day period, the Company shall not thereafter issue or sell any New Securities, without first offering such securities in the manner provided above. (f) The preemptive right granted under this Agreement shall expire upon the consummation of Qualified Public Offering, which shall mean a sale of Common Shares by the Company that satisfies each of the following conditions: (i) may be assigned the sale of the Common Shares is effected in whole an underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, other than a registration relating solely to a transaction under Rule 145 under such Act (or in part by such holder any successor thereto) or to any an employee benefit plan of its affiliates, and the Company; (ii) shall terminate at the close of business such Common Shares upon issuance are listed on the fifth anniversary New York Stock Exchange or included for trading in the Nasdaq National Market System; (iii) the offering price to the public is not less than $1.904 per Common Share, adjusted for stock splits, stock dividends, other stock combinations or other like events; and (iv) the sales of Common Shares results in at least $20,000,000 of gross proceeds to the Company, or, when considered together with all previous underwritten public offerings of the Closing DateCompany satisfying clauses (i), (ii) and (iii) above, at least $30,000,000 of aggregate gross proceeds to the Company.