Common use of Stockholder Preemptive Rights Clause in Contracts

Stockholder Preemptive Rights. (a) Subject to Section 9(b) below, if the Company proposes to issue any shares of Common Stock or any securities containing options or rights to acquire any shares of Common Stock or any securities convertible or exchangeable for Common Stock, in each case after the date hereof, the Company will offer to sell to each Stockholder a number of such securities ("Preemptive Shares") so that the Ownership Ratio for such Stockholder immediately after the issuance of such securities (and assuming the purchase of such Preemptive Shares) would be equal to the Ownership Ratio for such Stockholder immediately prior to such issuance of securities. The Company shall give each Stockholder at least thirty (30) days prior written notice of any proposed issuance, which notice shall disclose in reasonable detail the proposed terms and conditions of such issuance (the "Issuance Notice"). Each Stockholder will be entitled to purchase such securities at the same price, on the same terms (including, if more than one type of security is issued, the same proportionate mix of such securities), and at the same time as the securities are issued by delivery of irrevocable written notice (the "Election Notice") to the Company of such election within thirty (30) days after delivery of the Issuance Notice (the "Preemptive Period"). If any Stockholder has elected to purchase any Preemptive Shares, the sale of such shares shall be consummated as soon as practical (but in any event within fifteen (15) days) after the delivery of the Election Notice. To the extent the Stockholders do not elect to, or are not entitled to, purchase all of the Preemptive Shares, then the Company may issue the remaining Preemptive Shares at a price and on terms no more favorable to the transferee(s) thereof specified in the Issuance Notice during the 120-day period following the Preemptive Period. (b) The rights contained in this Section 9 shall not apply to (i) the issuance of Shares as a stock dividend or upon any subdivision or stock split of the outstanding shares of Common Stock; (ii) the issuance of Shares upon conversion of convertible securities issued in accordance with the provisions of Section 9(a) above; (iii) the issuance of Shares, or the grant of options, warrants or rights to subscribe for Shares, to officers, directors and other employees of the Company and to consultants to the Company, pursuant to stock options that are issued pursuant to the Option Plan or such other options that are granted to such persons and that are approved by unanimous approval of the entire Board; (iv) the issuance of Shares pursuant to the Subscription Agreements; (v) the issuance of Shares pursuant to any under-written public offering; or (vi).the issuance of Shares in connection with a Sale of the Company; (vii) any issuance of Shares in accordance with the exception provided in Section 6.2(a) above; or (viii) the issuance of Shares in connection with the recruitment of senior employees or the acquisition of assets or equity of an unrelated Person.

Stockholder Preemptive Rights. (a) Subject to Section 9(bsubsection (b) below, if the Company proposes to issue issues any shares of Common Stock or any securities containing options or rights to acquire any shares of Common Stock or any securities convertible or exchangeable for Common StockStock Equivalents, in each case after the date hereof, other than pursuant to an Exempted Issuance (as defined below), the Company will offer to sell to each Stockholder (other than the Founders) a number of such securities ("Preemptive Offered Shares") so that the Ownership Ratio for such Stockholder immediately after the issuance of such securities (and assuming the purchase of such Preemptive Offered Shares) would be equal to the Ownership Ratio for such Stockholder immediately prior to such issuance of securities. The Company shall give each Stockholder (other than the Founders) at least thirty (30) days prior written notice of any proposed issuance, which notice shall disclose in reasonable detail the proposed terms and conditions of such issuance (the "Issuance Notice"). Each Stockholder (other than the Founders) will be entitled to purchase such securities at the same price, on the same terms (including, if more than one type of security is issued, the same proportionate mix of such securities), and at the same time as the securities are issued by delivery of irrevocable written notice (the "Election Notice") to the Company of such election within thirty (30) days after delivery of the Issuance Notice (the "Preemptive PeriodElection Notice"). If any Stockholder (other than the Founders) has elected to purchase any Preemptive Offered Shares, the sale of such shares shall be consummated as soon as practical (but in any event within fifteen (15) days) after the delivery of the Election Notice. To the extent the Stockholders do not elect to, or are not entitled to, purchase all of the Preemptive Shares, then the Company may issue the remaining Preemptive Shares at a price and on terms no more favorable to the transferee(s) thereof specified in the Issuance Notice during the 120-day period following the Preemptive Period. (b) The rights contained in this For purposes of Section 9 shall not apply to 6(a), an "Exempted Issuance" means the issuance following the date hereof of any Stockholder Shares for Fair Market Value at the time of issuance (i) upon conversion of the issuance Series D Preferred Stock and the Series A Preferred Stock and the exercise of Shares warrants held by the Warrant Holders, (ii) pursuant to any duly approved option plan or similar compensation plan for employees, consultants or directors of the Company, (iii) as a stock dividend or upon any subdivision or stock split of the outstanding shares of Common Stock; (ii) , provided that the issuance of Shares upon conversion of convertible securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (iv) for the acquisition by the Company of another entity or business by merger or such other transaction as would result in accordance with the provisions ownership by the Company of Section 9(anot less than a majority of the voting power of the other entity or for the purchase of all assets of an entity or business, (v) above; pursuant to a Qualified Public Offering, (iiivi) as approved by the issuance of Shares, or the grant of options, warrants or rights to subscribe for SharesBoard, to officersany person, directors and other employees including Otis xx any of the Company and its Affiliates, in consideration of any payment under or with respect to consultants to any licensing, supply, customer, manufacturing or similar commercial agreement with the Company, pursuant to stock options that are issued pursuant to the Option Plan or such other options that are granted to such persons and that are approved by unanimous approval of the entire Board; (iv) the issuance of Shares pursuant to the Subscription Agreements; (v) the issuance of Shares pursuant to any under-written public offering; or (vi).the issuance of Shares in connection with a Sale of the Company; (vii) any issuance that is deemed to be exempted in a written instrument signed by the holders of at least a majority of the Stockholder Shares in accordance with the exception provided in Section 6.2(a) above; or held by (viiiA) the issuance NBIC Stockholders, (B) the Series D Stockholders and (C) all Stockholders. (c) This Section 5 shall automatically terminate upon the consummation of Shares in connection with the recruitment of senior employees or the acquisition of assets or equity of an unrelated Persona Qualified Public Offering.

Stockholder Preemptive Rights. At any time after the date hereof and prior to a Qualified Public Offering or an Approved Sale of the Corporation, and subject to Section 4(d) below, each time the Corporation proposes to sell shares of its capital stock or Options for cash, or issue debt to one or more Stockholders for cash, the Corporation shall also make an offering of such shares, debt or other investment rights to the Stockholders to acquire the same in accordance with the following provisions: (a) Subject The Corporation shall deliver a notice to Section 9(b) below, each Stockholder stating the amount of securities (and if the Company proposes to issue any shares of Common Stock or any securities containing options or rights to acquire any shares of Common Stock or any securities convertible or exchangeable for not Common Stock, a description of the securities) to be offered and the price and the terms on which it proposes to offer such securities. Such notice shall be sent to the addresses set forth in each case after the date hereofrecords of the Corporation. (b) Each Stockholder may elect to purchase, at the Company will offer price and on the terms specified in the notice, up to sell to each Stockholder a number its pro rata portion of such securities ("Preemptive Shares") so that the Ownership Ratio for such Stockholder immediately after the issuance of such securities (and assuming the purchase of such Preemptive Shares) would be equal to the Ownership Ratio for such Stockholder immediately prior to such issuance of securities. The Company shall give each Stockholder at least thirty (30) days prior by delivering written notice of any proposed issuance, which notice shall disclose in reasonable detail the proposed terms and conditions of such issuance (the "Issuance Notice"). Each Stockholder will be entitled to purchase such securities at the same price, on the same terms (including, if more than one type of security is issued, the same proportionate mix of such securities), and at the same time as the securities are issued by delivery of irrevocable written notice (the "Election Notice") election to the Company of such election within thirty (30) days after delivery of the Issuance Notice (the "Preemptive Period"). If any Stockholder has elected to purchase any Preemptive Shares, the sale of such shares shall be consummated as soon as practical (but in any event Corporation within fifteen (15) days) days after the delivery transmittal of the Election NoticeCorporation's notice. To Each Stockholder's pro rata portion shall be based upon a fraction, the extent numerator of which is the number of Vested Shares owned by such Stockholder (and, in the case of Laminar, the number of shares of Common Stock subject to the Laminar Warrant) and the denominator of which is the number of shares of Common Stock on a Fully Diluted Basis (assuming full -5- conversion or exercise of convertible securities and Options) held by all parties who have preemptive rights and who elect to participate. If one or more of the Stockholders do elects not elect toto purchase its pro rata portion of such securities, or the Stockholders who have elected to purchase their pro rata portion may also purchase the pro rata portion of the remaining securities in successive rounds until all such remaining securities have been purchased. (c) Any securities referred to in the notice that are not entitled toelected to be purchased as provided in subsection (b) above may, purchase all of during the Preemptive Sharesone hundred eighty (180) day period thereafter, then be offered by the Company may issue the remaining Preemptive Shares Corporation to any other person or persons at a price not less than, and on material terms no more favorable to the transferee(s) thereof offeree than, those specified in the Issuance Notice during the 120-day period following the Preemptive Periodnotice. (bd) The preemptive rights contained set forth in this Section 9 4 shall not apply be applicable to the issuance of (i) the issuance of Shares as a capital stock dividend or upon any subdivision Options to directors, officers, or stock split employees of the outstanding shares Corporation pursuant to the Corporation's stock option plans, stock purchase plans, benefit plans or employment agreements that are approved by a majority of Common Stock; the non-employee directors, (ii) the issuance of Shares warrants or Options to the Corporation's lenders and shares of Common Stock issuable upon conversion exercise of convertible securities issued in accordance with the provisions of Section 9(a) above; such warrants, (iii) the issuance of Shares, or the grant of options, warrants or rights to subscribe for Shares, to officers, directors and other employees of the Company and to consultants to the Company, pursuant to capital stock options that are issued pursuant to the Option Plan or such other options that are granted to such persons and that are approved by unanimous approval of the entire Board; (iv) the issuance of Shares pursuant to the Subscription Agreements; (v) the issuance of Shares pursuant to any under-written public offering; or (vi).the issuance of Shares in connection with a Sale merger, acquisition, plan of the Company; exchange or consolidation of another company or strategic relationship, or (viiiv) any issuance sale of Shares in accordance securities to be issued (or required to be exchanged into securities to be issued) pursuant to a registration statement filed pursuant to the Securities Act with the exception provided in Section 6.2(a) above; Securities and Exchange Commission, or (viiiv) the issuance of Stockholder Shares in connection with the recruitment of senior employees or the acquisition of assets or equity of an unrelated Personrepurchased from Management Stockholders pursuant to Section 19 and subsequently reissued.

Stockholder Preemptive Rights. (a) Subject to Section 9(b6(b) below, if the Company proposes to issue any shares of Common Stock or any securities containing options or rights to acquire any shares of Common Stock or any securities convertible or exchangeable for Common StockEquivalents, in each case after the date hereof, the Company will offer to sell to each Stockholder a number of such securities ("Preemptive “Offered Shares"”) so that the Ownership Ratio for such Stockholder immediately after the issuance of such securities (and assuming the purchase of such Preemptive Offered Shares) would be equal to the Ownership Ratio for such Stockholder immediately prior to such issuance of securities. The Company shall give each Stockholder at least thirty (30) days prior written notice of any proposed issuance, which notice shall disclose in reasonable detail the proposed terms and conditions of such issuance (the "“Issuance Notice"”). Each Stockholder will be entitled to purchase such securities at the same price, on the same terms (including, if more than one type of security is issued, the same proportionate mix of such securities), and at the same time as the securities are issued by delivery of irrevocable written notice (the "“Election Notice"”) to the Company of such election within thirty (30) days after delivery of the Issuance Notice (the "“Preemptive Period"”). If any Stockholder has elected to purchase any Preemptive Offered Shares, the sale of such shares shall be consummated as soon as practical (but in any event within fifteen (15) days) after the delivery of the Election Notice. To the extent the Stockholders do not elect to, or are not entitled to, purchase all of the Preemptive Offered Shares, then the Company may issue the remaining Preemptive Offered Shares at a price and on terms no more favorable to the transferee(s) thereof specified in the Issuance Notice during the 120-day period following the Preemptive Period. (b) The rights contained in this Section 9 6 shall not apply to the issuance of Common Stock or Common Stock Equivalents (i) the issuance of Shares as a stock dividend or upon any subdivision or stock split of the outstanding shares of Common Stock; (ii) the issuance of Shares upon conversion of any shares of convertible securities issued in accordance with the provisions of Section 9(a) abovesecurities; (iii) the issuance of Shares, or the grant of options, warrants or rights to subscribe for Shares, to officers, directors and other employees of the Company and to consultants to the Company, pursuant to stock options that are issued pursuant to the Option Plan or such other options that are granted to such persons and that are approved by unanimous approval of the entire Board; (iv) the issuance to financial institutions or lessors in connection with commercial credit arrangements, equipment financing, commercial property lease transactions or similar transactions or to an entity as a component of Shares pursuant to the Subscription Agreements; any business relationship with such entity also involving a material marketing, distribution, product development, supply and/or technology licensing arrangement, (v) the issuance of Shares issued in connection with bona fide acquisitions, mergers or similar transactions, (vi) issued to Persons other than BRS and its Affiliates (provided such issuances are approved by BRS), or (vii) pursuant to any under-written public offering; or . (vi).the issuance of Shares in connection with c) This Section 6 shall automatically terminate upon a Sale of the Company; (vii) any issuance of Shares in accordance with the exception provided in Section 6.2(a) above; or (viii) the issuance of Shares in connection with the recruitment of senior employees or the acquisition of assets or equity of an unrelated PersonQualified Public Offering.

Stockholder Preemptive Rights. Subject to Section 4(d), prior to the earlier of a Public Sale or a Sale of the Corporation, and for so long as any Stockholder owns any Stockholder Shares, each time the Corporation proposes to sell shares of its capital stock or options, warrants or other rights to buy capital stock for cash, the Corporation shall also make an offering of such shares to the Stockholders in accordance with the following provisions: (a) Subject to Section 9(b) below, if the Company proposes to issue any shares of Common Stock or any securities containing options or rights to acquire any shares of Common Stock or any securities convertible or exchangeable for Common Stock, in each case after the date hereof, the Company will offer to sell The Corporation shall deliver a notice to each Stockholder a stating the number of shares to be offered and the price and the terms on which it proposes to offer such securities ("Preemptive Shares") so that the Ownership Ratio for such Stockholder immediately after the issuance of such securities (and assuming the purchase of such Preemptive Shares) would shares. Such notice shall be equal sent to the Ownership Ratio for such Stockholder immediately prior to such issuance addresses set forth in the records of securities. The Company shall give each Stockholder at least thirty the Corporation. (30b) days prior written notice of any proposed issuance, which notice shall disclose in reasonable detail the proposed terms and conditions of such issuance Within fifteen (the "Issuance Notice"). Each Stockholder will be entitled to purchase such securities at the same price, on the same terms (including, if more than one type of security is issued, the same proportionate mix of such securities), and at the same time as the securities are issued by delivery of irrevocable written notice (the "Election Notice") to the Company of such election within thirty (3015) days after delivery of the Issuance Notice notice, each Stockholder may elect to purchase, at the price and on the terms specified in the notice, up to its Pro Rata Portion (the "Preemptive Period"). If any Stockholder has elected taking into account capital stock subject to purchase any Preemptive Shares, the sale currently exercisable warrants) of such shares shall be consummated as soon as practical (but in any event by delivering written notice of such election to the Corporation within such fifteen (15) days. (c) after Any shares referred to in the delivery of the Election Notice. To the extent the Stockholders do not elect to, or notice that are not entitled toelected to be purchased as provided in subsection 4(b) above may, purchase all of during the Preemptive Shares180-day period thereafter, then be offered by the Company may issue the remaining Preemptive Shares Corporation to any other person or persons at a price not less than, and on terms no more favorable to the transferee(s) thereof offeree than, those specified in the Issuance Notice during the 120-day period following the Preemptive Periodnotice. (bd) The preemptive rights contained set forth in this Section 9 4 shall not apply be applicable to the issuance of (i) the issuance of Shares as a stock dividend or upon any subdivision or stock split of the outstanding shares of Common Stock; Stock to directors, officers, consultants or employees of the Corporation pursuant to the Corporation's stock option plans, (ii) warrants, and shares of Common Stock issuable upon exercise of warrants, issued to the issuance of Shares upon conversion of convertible securities issued in accordance with the provisions of Section 9(a) above; Corporation's lenders, (iii) the issuance capital stock to Independent Third Parties in connection with a merger, acquisition, plan of Sharesexchange or consolidation of another company, or the grant (iv) any sale of options, warrants or rights securities to subscribe for Shares, be issued pursuant to officers, directors and other employees of the Company and to consultants a registration statement filed pursuant to the CompanySecurities Act with the Securities and Exchange Commission, pursuant to stock options that are (v) additional Stockholder Shares issued pursuant to the Option Plan or such other options that are granted to such persons and that are approved by unanimous approval formation of the entire Board; Corporation, (ivvi) the issuance of Shares pursuant to the Subscription Agreements; (v) the issuance of Shares pursuant to any under-written public offering; or (vi).the issuance of Shares in connection with a Sale of the Company; subscriptions for shares executed before December 31, 2003 and (vii) any issuance of Stockholder Shares in accordance with the exception provided in Section 6.2(a) above; or (viii) the issuance of Shares in connection with the recruitment of senior employees or the acquisition of assets or equity of an unrelated Personrepurchased from Executives pursuant to their respective employment agreements and subsequently reissued.

Stockholder Preemptive Rights. Subject to Section 4(d), prior to the earlier of a Qualified Public Offering or a Sale of the Corporation, and for so long as any Stockholder owns any Stockholder Shares, each time the Corporation proposes to sell shares of its capital stock, or securities convertible into capital stock, for cash, the Corporation shall also make an offering of such shares or securities to the Stockholders in accordance with the following provisions: (a) Subject to Section 9(b) below, if the Company proposes to issue any shares of Common Stock or any securities containing options or rights to acquire any shares of Common Stock or any securities convertible or exchangeable for Common Stock, in each case after the date hereof, the Company will offer to sell The Corporation shall deliver a notice to each Stockholder a stating the number of shares to be offered and the price and the terms on which it proposes to offer such securities ("Preemptive Shares") so that the Ownership Ratio for such Stockholder immediately after the issuance of such securities (and assuming the purchase of such Preemptive Shares) would shares. Such notice shall be equal sent to the Ownership Ratio for such Stockholder immediately prior to such issuance addresses set forth in the records of securities. The Company shall give each Stockholder at least thirty the Corporation. (30b) days prior written notice of any proposed issuance, which notice shall disclose in reasonable detail the proposed terms and conditions of such issuance (the "Issuance Notice"). Each Stockholder will be entitled to purchase such securities at the same price, on the same terms (including, if more than one type of security is issued, the same proportionate mix of such securities), and at the same time as the securities are issued by delivery of irrevocable written notice (the "Election Notice") to the Company of such election within thirty (30) Within 15 days after delivery of the Issuance Notice (notice, each Stockholder may elect to purchase, at the "Preemptive Period"). If any Stockholder has elected price and on the terms specified in the notice, up to purchase any Preemptive Shares, the sale its Pro Rata Portion of such shares shall be consummated as soon as practical by delivering written notice of such election to the Corporation within such 15 calendar days. (but c) Any shares referred to in any event within fifteen (15) days) after the delivery of the Election Notice. To the extent the Stockholders do not elect to, or notice that are not entitled toelected to be purchased as provided in subsection (b) above may, purchase all of during the Preemptive Shares180-day period thereafter, then be offered by the Company may issue the remaining Preemptive Shares Corporation to any other person or persons at a price not less than, and on terms no more favorable to the transferee(s) thereof offeree than, those specified in the Issuance Notice during the 120-day period following the Preemptive Periodnotice. (bd) The preemptive rights contained set forth in this Section 9 4 shall not apply be applicable to the issuance of (i) up to 188 shares, (which represents approximately 7% of the issuance fully diluted outstanding shares as of Shares as a the date hereof) (appropriately adjusted for any stock dividend or upon any subdivision or dividend, stock split or recapitalization) of Common Stock to directors, officers, or employees of the outstanding Corporation pursuant to the Corporation's stock option plans, (ii) shares of Common Stock; (ii) Stock issuable upon exercise of the issuance of Shares upon conversion of convertible securities issued in accordance with the provisions of Section 9(a) above; Warrants, (iii) capital stock in connection with a merger, acquisition, plan of exchange or consolidation of the issuance of SharesCorporation, or (iv) any sale of securities to be issued pursuant to a registration statement filed pursuant to the grant Securities Act with the Securities and Exchange Commission, or (v) shares of options, warrants or rights to subscribe for Shares, to officers, directors and other employees of the Company and Common Stock issued to consultants to the Company, pursuant to stock options that are issued pursuant to the Option Plan or such other options that are granted to such persons and that are approved by unanimous approval of the entire Board; (iv) the issuance of Shares pursuant to the Subscription Agreements; (v) the issuance of Shares pursuant to any under-written public offering; or (vi).the issuance of Shares in connection with a Sale of the Company; (vii) any issuance of Shares in accordance with the exception provided in Section 6.2(a) above; or (viii) the issuance of Shares in connection with the recruitment of senior employees or the acquisition of assets or equity of an unrelated PersonCorporation as payment for services rendered.