Common use of Timing and Procedure Clause in Contracts

Timing and Procedure. Except in respect of issuances set forth in Section 4.5, prior to the consummation of the issuance of New Securities, the Company shall send a written notice thereof (a “Participation Notice”) to the Stockholder. The Participation Notice shall include: (a) the principal terms of the proposed issuance, including (i) the number and kind of New Securities to be included in the issuance, (ii) the price per security of the New Securities, (iii) the percentage equal to the aggregate number of Shares held by the Stockholder and Stockholder Affiliates (collectively, the “Investor Shares”) immediately prior to the issuance of the New Securities (which number the Company may elect to determine by reviewing the most recent Schedule 13D filed by the Stockholder and Stockholder Affiliates) divided by the aggregate number of the shares of Common Stock of the Company then issued and outstanding (the “Participation Percentage”), and (iv) the name of each Person to whom the New Securities are proposed to be issued (each a “Prospective Subscriber”); provided, that if the consideration to be paid by the Prospective Subscriber for the New Securities contains non-cash consideration, then the Participation Notice shall also specify the fair market value (as reasonably determined by the Board) of such non-cash consideration; and (b) an offer by the Company to issue to the Stockholder and any designee of the Stockholder an aggregate number of New Securities equal (x) to the Participation Percentage multiplied by (y) the aggregate number of New Securities to be included in the issuance (the “Preemptive Rights Shares”), at the same price and otherwise on the same terms and conditions as the issuance to each of the Prospective Subscribers; provided, that if consideration to be paid by the Prospective Subscriber for the New Securities contains non-cash consideration, then such offer shall give each Stockholder the option to pay, in lieu of delivery of such non-cash consideration, cash in the amount of the fair market value (as reasonably determined by the Board) of such non-cash consideration.

Timing and Procedure. Except in respect of issuances set forth in Section 4.5, prior Prior to the consummation of the issuance of New Securities, the Company shall send a written notice thereof (a “Participation Notice”) to the StockholderShareholder. The Participation Notice shall include: (a) the principal terms of the proposed issuance, including (i) the number and kind of New Securities to be included in the issuance, (ii) the price per security of the New Securities, (iii) the percentage equal to the aggregate number of Shares held by the Stockholder and Stockholder Affiliates (collectively, the “Investor Shares”) immediately prior to the issuance of the New Securities (which number the Company may elect to determine by reviewing the most recent Schedule 13D filed by the Stockholder and Stockholder Affiliates) divided by the aggregate number of the shares of Common Stock common stock of the Company then issued and outstanding (the “Participation Percentage”), and (iv) the name of each Person to whom the New Securities are proposed to be issued (each a “Prospective Subscriber”); providedprovided that, that if the consideration to be paid by the Prospective Subscriber for the New Securities contains non-cash consideration, then the Participation Notice shall also specify the fair market value (as reasonably determined by the Company Board) of such non-cash consideration; and (b) an offer by the Company to issue to the Stockholder and Shareholder such portion (not in any designee event to exceed the Shareholder’s Participation Percentage) of the Stockholder an aggregate number of New Securities equal (x) to the Participation Percentage multiplied by (y) the aggregate number of New Securities to be included in the issuance as may be requested by the Shareholder (the “Preemptive Rights Shares”), at the same price and otherwise on the same terms and conditions as the issuance to each of the Prospective Subscribers; providedprovided that, that if consideration to be paid by the Prospective Subscriber for the New Securities contains non-cash consideration, then such offer shall give each Stockholder the Shareholder the option to pay, in lieu of delivery of such non-cash consideration, cash in the amount of the fair market value (as reasonably determined by the Company Board) of such non-cash consideration; and provided, further, that, if the issuance of the Preemptive Rights Shares to the Shareholder would require approval of the stockholders of the Company pursuant to the NYSE Rule, such offer and any issuance of the Preemptive Rights Shares shall be conditioned on such stockholder approval being obtained (it being agreed that the Company shall not issue New Securities to any Person if such stockholder approval is not obtained).

Timing and Procedure. Except in respect of issuances set forth in Section 4.5, No less than twenty (20) Business Days prior to the consummation of the issuance of New Securities, the Company shall send a written notice thereof (a “Participation Notice”) to the StockholderShareholder. The Participation Notice shall include: (a) the principal terms of the proposed issuance, including (i) the number and kind of New Securities to be included in the issuance, (ii) the price per security of the New Securities, (iii) the percentage equal to (x) the aggregate number of Common Shares held by the Stockholder Shareholder and Stockholder Affiliates (collectively, the “Investor Shares”) any Affiliate Shareholders on a fully diluted as-converted basis immediately prior to the issuance of the New Securities (which number the Company may elect to determine by reviewing the most recent Schedule 13D filed by the Stockholder and Stockholder Affiliates) divided by (y) the aggregate total number of the issued and outstanding shares of Common Stock on a fully diluted as-converted basis immediately prior to the issuance of the Company then issued and outstanding New Securities (the “Participation Percentage”), and (iv) the name of each Person to whom the New Securities are proposed to be issued (each a “Prospective Subscriber”); providedprovided that, that if the consideration to be paid by the Prospective Subscriber for the New Securities contains non-cash consideration, then the Participation Notice shall also specify the fair market value (as reasonably determined by the Company Board) of such non-cash consideration; and (b) an offer by the Company to issue to the Stockholder and Shareholder such portion (not in any designee event to exceed the Participation Percentage) of the Stockholder an aggregate number of New Securities equal (x) to the Participation Percentage multiplied by (y) the aggregate number of New Securities to be included in the issuance as may be requested by the Shareholder (the “Preemptive Rights SharesSecurities”), at the same price and otherwise on the same terms and conditions as the issuance to each of the Prospective Subscribers; providedprovided that, that if consideration to be paid by the Prospective Subscriber for the New Securities contains non-cash consideration, then such offer shall give each Stockholder the Shareholder the option to pay, in lieu of delivery of such non-cash consideration, cash in the amount of the fair market value (as reasonably determined by the Company Board) of such non-cash consideration; and provided, further, that, if the issuance of the Preemptive Rights Securities to the Shareholder would require approval of the stockholders of the Company pursuant to the rules of Nasdaq (or the rules of the principal market on which the Common Stock is then listed), such offer and any issuance of the Preemptive Rights Securities shall be conditioned on such stockholder approval being obtained (it being agreed that the Company shall not issue New Securities to any Person if such stockholder approval is not obtained).

Timing and Procedure. Except in respect of issuances set forth in Section 4.5, prior Prior to the consummation of the issuance of New Securities, the Company shall send a written notice thereof (a “Participation Notice”) to the Stockholdereach Shareholder. The Participation Notice shall include: (a) the principal terms of the proposed issuance, including (i) the number and kind of New Securities to be included in the issuance, (ii) the price per security of the New Securities, (iii) the percentage equal to the aggregate number of Shares held by the Stockholder and Stockholder Affiliates (collectively, the “Investor Shares”) immediately prior to the issuance of the New Securities (which number the Company may elect to determine by reviewing the most recent Schedule 13D filed by the Stockholder and Stockholder Affiliates) divided by the aggregate number of the shares of Common Stock common stock of the Company then issued and outstanding (the “Participation Percentage”), and (iv) the name of each Person to whom the New Securities are proposed to be issued (each a “Prospective Subscriber”); providedprovided that, that if the consideration to be paid by the Prospective Subscriber for the New Securities contains non-cash consideration, then the Participation Notice shall also specify the fair market value (as reasonably determined by the Company Board) of such non-cash consideration; and (b) an offer by the Company to issue to each Shareholder such portion (not in any event to exceed such Shareholder’s pro rata share (based upon the Stockholder and any designee respective number of shares of common stock of the Stockholder an aggregate number Company Beneficially Owned by such Shareholder) of New Securities equal (x) to the Participation Percentage multiplied by (yPercentage) of the aggregate number of New Securities to be included in the issuance as may be requested by such Shareholder (the “Preemptive Rights Shares”), at the same price and otherwise on the same terms and conditions as the issuance to each of the Prospective Subscribers; providedprovided that, that if consideration to be paid by the Prospective Subscriber for the New Securities contains non-cash consideration, then such offer shall give each Stockholder Shareholder the option to pay, in lieu of delivery of such non-cash consideration, cash in the amount of the fair market value (as reasonably determined by the Company Board) of such non-cash consideration; and provided, further, that, if the issuance of the Preemptive Rights Shares to such Shareholder would require approval of the stockholders of the Company pursuant to the NYSE Rule, such offer and any issuance of the Preemptive Rights Shares shall be conditioned on such stockholder approval being obtained (it being agreed that the Company shall not issue New Securities to any Person if such stockholder approval is not obtained).

Timing and Procedure. Except in respect of issuances set forth in Section 4.5, No less than twenty (20) Business Days prior to the consummation of the issuance of New Securities, the Company shall send a written notice thereof (a “Participation Notice”) to the StockholderShareholder. The Participation Notice shall include: (a) the principal terms of the proposed issuance, including (i) the number and kind of New Securities to be included in the issuance, (ii) the price per security of the New Securities, (iii) the percentage equal to (x) the aggregate number of Common Shares held that are Beneficially Owned (on a fully diluted as-converted basis) collectively by the Stockholder Shareholder and Stockholder Affiliates (collectively, the “Investor Shares”) any Affiliate Shareholders immediately prior to the issuance of the New Securities (which number the Company may elect to determine by reviewing the most recent Schedule 13D filed by the Stockholder and Stockholder Affiliates) divided by (y) the aggregate total number of the issued and outstanding shares of Common Stock on a fully diluted as-converted basis immediately prior to the issuance of the Company then issued and outstanding New Securities (the “Participation Percentage”), and (iv) the name of each Person to whom the New Securities are proposed to be issued (each a “Prospective Subscriber”); providedprovided that, that if the consideration to be paid by the Prospective Subscriber for the New Securities contains non-cash consideration, then the Participation Notice shall also specify the fair market value (as reasonably determined by the Company Board) of such non-cash consideration; and (b) an offer by the Company to issue to the Stockholder and Shareholder such portion (not in any designee event to exceed the Participation Percentage) of the Stockholder an aggregate number of New Securities equal (x) to the Participation Percentage multiplied by (y) the aggregate number of New Securities to be included in the issuance as may be requested by the Shareholder (the “Preemptive Rights SharesSecurities”), at the same price and otherwise on the same terms and conditions as the issuance to each of the Prospective Subscribers; providedprovided that, that if consideration to be paid by the Prospective Subscriber for the New Securities contains non-cash consideration, then such offer shall give each Stockholder the Shareholder the option to pay, in lieu of delivery of such non-cash consideration, cash in the amount of the fair market value (as reasonably determined by the Company Board) of such non-cash consideration; and provided, further, that, if the issuance of the Preemptive Rights Securities to the Shareholder would require approval of the stockholders of the Company pursuant to the rules of Nasdaq (or the rules of the principal market on which the Common Stock is then listed), such offer and any issuance of the Preemptive Rights Securities shall be conditioned on such stockholder approval being obtained (it being agreed that the Company shall not issue New Securities to any Person if such stockholder approval is not obtained).