Right of First Offer Provided that both on the date of Tenant’s exercise of its option in regard thereto, and on the date upon which such space is to be occupied by Tenant hereunder, (i) this Lease is in full force and effect and (ii) Tenant is not then in material default hereunder, Tenant shall have the right of first offer (the “Right of First Offer”), upon the conditions, and subject to the terms set forth in this section, to lease additional office space on the third (3rd) floor of The Ivory Building (the “Expansion Space”):
(a) Tenant shall deliver written notice to the Landlord during the Original Term indicating that Tenant requires the Expansion Space. The notice shall include (i) the size and location of the Expansion Space, (ii) the date on which the Tenant intends to occupy the Expansion Spate, and (iii) the Base Rent to apply to the Expansion Space which Landlord and Tenant agree shall be $[***] per rentable square foot with [***]% annual escalations. Landlord will include as part of the Base Rent for the Expansion Space set forth above three (3) parking spaces per 1,000 square feet leased by Tenant. Tenant has the option to increase the ratio of parking spaces from three (3) per 1,000 square feet leased by Tenant to five (5) spaces per 1,000 square feet leased by Tenant by giving Landlord fifteen (15) days written notice. Tenant agrees to pay $[***] per month for each additional parking space. The charges for the additional parking spaces shall be deemed Additional Rent in accordance with Section 4.4.2.
(b) Within ten (10) days of Landlord’s receipt of Tenant’s written notice, Landlord shall deliver to Tenant written notice confirming receipt of Tenant’s notice requiring the Expansion Space.
(c) Landlord and Tenant shall proceed in good faith to enter into an amendment to this Lease, which amendment shall incorporate the Expansion Space into the Premises and set forth (i) the Base Rent with respect to the Expansion Space as provided above, (ii) Tenant’s Proportionate Share to reflect the inclusion of the Expansion Space, (iii) the number of additional parking spaces allocated for the Expansion Space as provided above, (iv) recalculation of the common area factor charged on the entire space to reflect the entire floor’s original common area factor, (v) the lease term on the Expansion Space shall be coterminous with the term of the primary space, and (vi) any other important terms relating to the lease of the Expansion Space.
Right of First Refusal Unless it shall have first delivered to the Buyer, at least seventy two (72) hours prior to the closing of such Future Offering (as defined herein), written notice describing the proposed Future Offering, including the terms and conditions thereof, and providing the Buyer an option during the seventy two (72) hour period following delivery of such notice to purchase the securities being offered in the Future Offering on the same terms as contemplated by such Future Offering (the limitations referred to in this sentence and the preceding sentence are collectively referred to as the “Right of First Refusal”) (and subject to the exceptions described below), the Company will not conduct any equity financing (including debt with an equity component) (“Future Offerings”) during the period beginning on the Closing Date and ending twelve (12) months following the Closing Date. In the event the terms and conditions of a proposed Future Offering are amended in any respect after delivery of the notice to the Buyer concerning the proposed Future Offering, the Company shall deliver a new notice to the Buyer describing the amended terms and conditions of the proposed Future Offering and the Buyer thereafter shall have an option during the seventy two (72) hour period following delivery of such new notice to purchase its pro rata share of the securities being offered on the same terms as contemplated by such proposed Future Offering, as amended. The foregoing sentence shall apply to successive amendments to the terms and conditions of any proposed Future Offering. The Right of First Refusal shall not apply to any transaction involving (i) issuances of securities in a firm commitment underwritten public offering (excluding a continuous offering pursuant to Rule 415 under the 1933 Act), (ii) issuances to employees, officers, directors, contractors, consultants or other advisors approved by the Board, (iii) issuances to strategic partners or other parties in connection with a commercial relationship, or providing the Company with equipment leases, real property leases or similar transactions approved by the Board (iv) issuances of securities as consideration for a merger, consolidation or purchase of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or in connection with the disposition or acquisition of a business, product or license by the Company. The Right of First Refusal also shall not apply to the issuance of securities upon exercise or conversion of the Company’s options, warrants or other convertible securities outstanding as of the date hereof or to the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option or restricted stock plan approved by the shareholders of the Company.
