Common use of Subsequent Securities Sales Clause in Contracts

Subsequent Securities Sales. (a) At least five days prior to the closing of the first sale of any securities of the Company (whether debt, equity or otherwise) that when aggregated with all other securities of the Company (whether debt, equity or otherwise) issued and sold thereby since December 1, 2011, other than pursuant to the Company’s Amended and Restated Equity-Based Compensation Plan or the Company’s 2011 Employee Stock Purchase Plan (or any additional or successor employee equity compensation arrangements) or that certain Series G Unit Subscription Agreement, dated as of December 1, 2011, by and among the Company and the other parties thereto, results in gross proceeds to the Company of at least $50,000,000.00 in the aggregate (a “Subsequent Transaction”), and for so long as Purchaser holds any of the shares of Series G Preferred Stock purchased hereby, the Company shall give notice of such Subsequent Transaction to Purchaser setting forth the terms and conditions of such Subsequent Transaction. The Company shall not enter into an agreement for a Subsequent Transaction unless such agreement permits the Company to comply with this Section 7 and Section 4 of the Certificate of Designation of Series G Preferred Stock of the Company dated December 1, 2011 (the “Certificate of Designation”). (b) Simultaneous with and subject to the closing of the Subsequent Transaction, if any, Purchaser shall have the right, but not the obligation: i. to the extent not prohibited by the terms of the securities issued in the Subsequent Transaction, to require the Company to use the proceeds of such Subsequent Transaction to redeem Purchaser’s Series G Preferred Stock in accordance with Section 4(b)(i) of the Certificate of Designation; or ii. to elect to convert all or less than all of Purchaser’s Series G Preferred Stock in accordance with Section 4(b)(ii) of the Certificate of Designation (a “Conversion”). (c) For the avoidance of doubt, if the Series G Preferred Stock is redeemed, repurchased, exchanged or converted, including but not limited to pursuant to this Section 7 or pursuant to the Company’s rights and obligations under the Certificate of Designation, for any reason other than in connection with an exchange of Series G Units pursuant to Section 6 of this Agreement, the holder of such Series G Units shall retain all of the Common Stock that was part of any Series G Unit of which the Series G Preferred Stock is subject to such redemption, repurchase, exchange or conversion.

Subsequent Securities Sales. (a) At least five days (5) Business Days prior to the closing of the first sale of any securities of the Company (whether debt, equity or otherwise) that when aggregated with all other securities of the Company (whether debt, equity or otherwise) issued and sold thereby since December 1, 2011, other than pursuant to the Company’s Amended and Restated Equitya Follow-Based Compensation Plan or the Company’s 2011 Employee Stock Purchase Plan (or any additional or successor employee equity compensation arrangements) or that certain Series G Unit Subscription Agreement, dated as of December 1, 2011, by and among the Company and the other parties thereto, results in gross proceeds to the Company of at least $50,000,000.00 in the aggregate (a “Subsequent Transaction”), and for so long as Purchaser holds any of the shares of Series G Preferred Stock purchased herebyOn Offering, the Company shall give notice of such Subsequent Transaction Follow-On Offering to each Purchaser that owns any Preferred Shares as of such date, setting forth the terms and conditions of such Subsequent Transaction. The Company shall not enter into an agreement for a Subsequent Transaction unless such agreement permits the Company to comply with this Section 7 and Section 4 of the Certificate of Designation of Series G Preferred Stock of the Company dated December 1, 2011 (the “Certificate of Designation”)Follow-On Offering. (b) Simultaneous with and subject To the extent the consent of any Purchaser to a Follow-On Offering would be required pursuant to the closing terms of either the Series H Certificate of Designation, the Series I Certificate of Designation or the Series J Certificate of Designation, each Purchaser hereby agrees to consent to any such Follow-On Offering to the extent (and only to the extent) that such Follow-On Offering meets all of the Subsequent Transaction, if any, Purchaser shall have the right, but not the obligationfollowing criteria: i. it is consummated on or before November 11, 2013; ii. it is offered to the extent not prohibited by the terms holders of the securities issued in the Subsequent Transaction, to require the Company to use the proceeds then-outstanding shares of such Subsequent Transaction to redeem Purchaser’s Series G H Preferred Stock in accordance with and Series I Preferred Stock (collectively, the “Existing Investors”) pursuant to Section 4(b)(i14(a) or Section 14(c) of the Series H Certificate of Designation and Series I Certificate of Designation, as applicable; iii. it is not an “Exempt Equity Issuance” as defined in the Series H Certificate of Designation or Series I Certificate of Designation; iv. it consists of Preferred Shares or such other security that has terms equivalent in all material respects, and limited to, the provisions set forth in Sections 2 through 8, inclusive, Sections 9(a), 9(b), 10 and 11(a) and Sections 12 through 15, inclusive of this Series J Certificate of Designation; orand ii. v. the purchase price results in gross proceeds to elect to convert the Company in an amount less than, or equal to, $50,000,000.00 in the aggregate together with any and all or less than all of Purchaser’s Series G Preferred Stock in accordance with Section 4(b)(ii) of the Certificate of Designation (a “Conversion”)other such Follow-On Offerings. (c) For To the avoidance extent that a Follow-On Offering is led by any of doubt, if the Series G Preferred Stock is redeemed, repurchased, exchanged or converted, including but not limited to pursuant to this Section 7 or pursuant Non-Pegasus Purchasers (a “Qualified Follow-On”) and in such Qualified Follow-On the Existing Investors purchase Follow-On Securities that results in gross proceeds payable to the Company’s rights and obligations under Company that is less than, or equal to, $30,000,000.00, then each Purchaser shall have the Certificate of Designation, for right to elect to Exchange all or any reason other than in connection with an exchange of Series G Units pursuant to Section 6 of this Agreement, the holder of such Series G Units shall retain all part of the Common Stock Preferred Shares held by such Purchaser. As used herein, “Exchange” means to exchange Preferred Shares into the equivalent face amount (based on the original purchase price for the Preferred Shares and the purchase price for such Follow-On Securities) of the Follow-On Securities being offered in a Qualified Follow-On on substantially the same terms and conditions that was part of any Series G Unit of which the Series G Preferred Stock is subject to govern such redemption, repurchase, exchange or conversionQualified Follow-On.

Subsequent Securities Sales. (a) At least five days (5) Business Days prior to the closing of the first sale of any securities of the Company (whether debt, equity or otherwise) that when aggregated with all other securities of the Company (whether debt, equity or otherwise) issued and sold thereby since December 1, 2011, other than pursuant to the Company’s Amended and Restated Equitya Follow-Based Compensation Plan or the Company’s 2011 Employee Stock Purchase Plan (or any additional or successor employee equity compensation arrangements) or that certain Series G Unit Subscription Agreement, dated as of December 1, 2011, by and among the Company and the other parties thereto, results in gross proceeds to the Company of at least $50,000,000.00 in the aggregate (a “Subsequent Transaction”), and for so long as Purchaser holds any of the shares of Series G Preferred Stock purchased herebyOn Offering, the Company shall give notice of such Subsequent Transaction Follow-On Offering to Purchaser that owns any Preferred Shares as of such date, setting forth the terms and conditions of such Subsequent Transaction. The Company shall not enter into an agreement for a Subsequent Transaction unless such agreement permits the Company to comply with this Section 7 and Section 4 of the Certificate of Designation of Series G Preferred Stock of the Company dated December 1, 2011 (the “Certificate of Designation”)Follow-On Offering. (b) Simultaneous with and subject To the extent the consent of Purchaser to a Follow-On Offering would be required pursuant to the closing terms of either the Series H Certificate of Designation, the Series I Certificate of Designation or the Series J Certificate of Designation, Purchaser hereby agrees to consent to any such Follow-On Offering to the extent (and only to the extent) that such Follow-On Offering meets all of the Subsequent Transaction, if any, Purchaser shall have the right, but not the obligationfollowing criteria: i. it is consummated on or before November 11, 2013; ii. it is offered to the extent not prohibited by the terms holders of the securities issued in the Subsequent Transaction, to require the Company to use the proceeds then-outstanding shares of such Subsequent Transaction to redeem Purchaser’s Series G H Preferred Stock in accordance with and Series I Preferred Stock (collectively, the “Existing Investors”) pursuant to Section 4(b)(i14(a) or Section 14(c) of the Series H Certificate of Designation and Series I Certificate of Designation, as applicable; iii. it is not an “Exempt Equity Issuance” as defined in the Series H Certificate of Designation or Series I Certificate of Designation; iv. it consists of Preferred Shares or such other security that has terms equivalent in all material respects, and limited to, the provisions set forth in Sections 2 through 8, inclusive, Sections 9(a), 9(b), 10 and 11(a) and Sections 12 through 15, inclusive of this Series J Certificate of Designation; orand ii. v. the purchase price results in gross proceeds to elect to convert the Company in an amount less than, or equal to, $50,000,000.00 in the aggregate together with any and all or less than all of Purchaser’s Series G Preferred Stock in accordance with Section 4(b)(ii) of the Certificate of Designation (a “Conversion”)other such Follow-On Offerings. (c) For To the avoidance extent that a Follow-On Offering is led by any of doubt, if the Series G Preferred Stock is redeemed, repurchased, exchanged or converted, including but not limited to pursuant to this Section 7 or pursuant Non-Pegasus Purchasers (a “Qualified Follow-On”) and in such Qualified Follow-On the Existing Investors purchase Follow-On Securities that results in gross proceeds payable to the Company’s rights and obligations under Company that is less than, or equal to, $30,000,000.00, then Purchaser shall have the Certificate of Designation, for right to elect to Exchange all or any reason other than in connection with an exchange of Series G Units pursuant to Section 6 of this Agreement, the holder of such Series G Units shall retain all part of the Common Stock Preferred Shares held by Purchaser. As used herein, “Exchange” means to exchange Preferred Shares into the equivalent face amount (based on the original purchase price for the Preferred Shares and the purchase price for such Follow-On Securities) of the Follow-On Securities being offered in a Qualified Follow-On on substantially the same terms and conditions that was part of any Series G Unit of which the Series G Preferred Stock is subject to govern such redemption, repurchase, exchange or conversionQualified Follow-On.

Subsequent Securities Sales. (a) At least five days prior to the closing of the first a sale of any securities of the Company (whether debt, equity or otherwise) that when aggregated with all other securities of the Company (whether debt, equity or otherwise) issued and sold thereby since December 1, 2011), other than pursuant to the Company’s Amended and Restated Equity-Based Compensation Plan or the Company’s 2011 Employee Stock Purchase Plan (or any additional or successor employee equity compensation arrangements) or that certain Series G Unit Subscription Agreement, dated as of December 1, 2011, by and among the Company and the other parties thereto, results in gross proceeds to the Company of at least $50,000,000.00 in the aggregate (a “Subsequent Transaction”), and for so long as Purchaser holds any of the shares of Series G Preferred Stock purchased herebyremains outstanding, the Company shall give notice of such Subsequent Transaction to Purchaser the Purchasers setting forth the terms and conditions of such Subsequent Transaction. The Company shall not enter into an agreement for a Subsequent Transaction unless such agreement permits the Company to comply with this Section 7 and Section 4 of the Certificate of Designation of Series G Preferred Stock of the Company dated December 1, 2011 (the “Certificate of Designation”). (b) Simultaneous with and subject to the closing of the Subsequent Transaction, if any, Purchaser each holder of Preferred Stock shall have the right, but not the obligation: i. to the extent not prohibited by the terms of the securities issued in the Subsequent Transaction, to require the Company to use the proceeds of such Subsequent Transaction to redeem Purchaser’s Series G the Preferred Stock in accordance with Section 4(b)(i) 5 of the Series F Preferred Stock Certificate of DesignationDesignations of the Company dated November 17, 2011 (the “Certificate of Designations”). Upon such redemption the holder shall retain all of the Common Stock that was part of any Unit of which the Preferred Stock is subject to redemption; or ii. to elect to convert all or less than all of Purchaserthe holder’s Series G Preferred Stock in accordance with Section 4(b)(ii) 4 of the Certificate of Designation Designations (a “Conversion”), and the holder shall forfeit 80% of the Common Stock that was part of any Unit of which the Preferred Stock is subject to Conversion and shall make such necessary arrangements to deliver any certificates representing such Common Stock to the Company. (c) For the avoidance of doubt, if the Series G Company redeems any Preferred Stock is redeemed, repurchased, exchanged or converted, including but not limited to pursuant to this Section 7 or pursuant to the Company’s its rights and obligations under the Certificate of Designation, Designations for any reason other than in connection with an exchange of Series G Units a Conversion (including without limitiation pursuant to Section Sections 5 and 6 of this Agreementthe Certificate of Designations), the holder of such Series G Units shall retain all of the Common Stock that was part of any Series G Unit of which the Series G Preferred Stock stock is subject to such redemption, repurchase, exchange or conversion.

Subsequent Securities Sales. (a) At least five days prior to the closing of the first sale of any securities of the Company (whether debt, equity or otherwise) that when aggregated with all other securities of the Company (whether debt, equity or otherwise) issued and sold thereby since December 1, 2011), other than pursuant to the Company’s Amended and Restated Equity-Based Compensation Plan or the Company’s 2011 Employee Stock Purchase Plan (or any additional or successor employee equity compensation arrangements) or this Agreement that certain Series G Unit Subscription Agreement, dated as of December 1, 2011, by and among the Company and the other parties thereto, results in gross proceeds to the Company of at least $50,000,000.00 in the aggregate (a “Subsequent Transaction”), and for so long as Purchaser holds any of the shares of Series G Preferred Stock purchased herebyremains outstanding, the Company shall give notice of such Subsequent Transaction to Purchaser the Purchasers setting forth the terms and conditions of such Subsequent Transaction. The Company shall not enter into an agreement for a Subsequent Transaction unless such agreement permits the Company to comply with this Section 7 9 and Section 4 of the Certificate of Designation of Series G Preferred Stock of the Company dated December 1, 2011 (the “Certificate of Designation”). (b) Simultaneous with and subject to the closing of the Subsequent Transaction, if any, Purchaser each holder of Series G Preferred Stock shall have the right, but not the obligation: i. to the extent not prohibited by the terms of the securities issued in the Subsequent Transaction, to require the Company to use the proceeds of such Subsequent Transaction to redeem Purchaser’s the Series G Preferred Stock in accordance with Section 4(b)(i) of the Certificate of Designation of Series G Preferred Stock of the Company dated December 1, 2011 (the “Certificate of Designation”); or ii. to elect to convert all or less than all of Purchaserthe holder’s Series G Preferred Stock in accordance with Section 4(b)(ii) of the Certificate of Designation (a “Conversion”). (c) For the avoidance of doubt, if the Series G Preferred Stock is redeemed, repurchased, exchanged or converted, including but not limited to pursuant to this Section 7 9 or pursuant to the Company’s rights and obligations under the Certificate of Designation, for any reason other than in connection with an exchange of Series G Units pursuant to Section 6 8 of this Agreement, the holder of such Series G Units shall retain all of the Common Stock that was part of any Series G Unit of which the Series G Preferred Stock is subject to such redemption, repurchase, exchange or conversion.