Common use of Certain Purchase Rights Clause in Contracts

Certain Purchase Rights. If the Company proposes to issue, sell, or ----------------------- grant (collectively, an "issuance") any equity securities or any securities -------- convertible into or exchangeable for equity securities (collectively, the "New --- Securities"), then the Company shall, no later than ten (10) business days prior ---------- to the consummation of such issuance, give written notice to each of the Stockholders of such issuance (the "Notice of Issuance"). Such Notice of ------------------ Issuance shall describe such issuance, and contain an offer to each such Stockholder to sell to such Stockholder, at the same price and for the same consideration to be paid by the proposed purchasers, such Stockholder's pro rata portion (which shall be a percentage, determined immediately prior to such issuance, equal to the percentage of the Fully-Diluted Common Stock held by such Stockholder). Subject to the foregoing, if Common Stock is being issued with other securities as a unit, each Stockholder who desires to accept such offer must purchase such unit in order for such acceptance to be valid. If any such Stockholder fails to accept such offer by written notice within ten (10) business days after its receipt of the Notice of Issuance, the Company shall proceed with such issuance, free of any right on the part of such Stockholder under this Section 4.1 in respect thereof. Any issuance of New Securities more than forty-five (45) days after the expiration of such ten business day period, or to a different issuee, or on terms and conditions less favorable to the Company in any material respect than those described in the notice to the Stockholders, shall be subject to a new notice to and new purchase rights by the Stockholders under this Section 4.1. This Section 4.1 shall not apply to the issuance of any Excluded Securities. For purposes of this Agreement, "Excluded -------- Securities" shall mean: (a) issuances of securities which have been approved ---------- prior to the date hereof (including without limitation issuances under the Company's employee stock purchase plans described under Section 5.3 of the Stock Purchase Agreement), provided that such issuances are permitted under the Purchase Agreements; (b) issuances of securities which have been approved by the Board of Directors in accordance with this Agreement and by the stockholders; (c) New Securities distributed or set aside to all holders of Common Stock on a per share equivalent basis; (d) issuances pursuant to the Purchase Agreements; and (e) issuances of New Securities upon the grant, exercise or conversion of (i) options or warrants to purchase shares of Company Stock or (ii) securities which are convertible into shares of Company Stock ((i) and (ii) shall be referred to collectively as "Convertible ----------- Securities"), in each case where such Convertible Securities have been granted ---------- or issued prior to the date hereof or have been granted or issued in accordance with this Agreement.

Certain Purchase Rights. If the Company proposes to issue, sell, or ----------------------- grant (collectively, an "issuance") any equity securities or any securities -------- convertible into or exchangeable for equity securities (collectively, the "New --- Securities"), then the Company shall, no later than ten (10) business days prior ---------- to the consummation of such issuance, give written notice to each of the Stockholders of such issuance (the "Notice of Issuance"). Such Notice of ------------------ Issuance shall describe such issuance, and contain an offer to each such Stockholder to sell to such Stockholder, at the same price and for the same consideration to be paid by the proposed purchasers, such Stockholder's pro rata portion (which shall be a percentage, determined immediately prior to such issuance, equal to the percentage of the Fully-Diluted Common Stock held by such Stockholder). Subject to the foregoing, if Common Stock is being issued with other securities as a unit, each Stockholder who desires to accept such offer must purchase such unit in order for such acceptance to be valid. If any such Stockholder fails to accept such offer by written notice within ten (10) business days after its receipt of the Notice of Issuance, the Company shall proceed with such issuance, free of any right on the part of such Stockholder under this Section 4.1 in respect thereof. Any issuance of New Securities more than forty-five (45) days after the expiration of such ten business day period, or to a different issuee, or on terms and conditions less favorable to the Company in any material respect than those described in the notice to the Stockholders, shall be subject to a new notice to and new purchase rights by the Stockholders under this Section 4.1. This Section 4.1 shall not apply to the issuance of any Excluded Securities. For purposes of this Agreement, "Excluded -------- Securities" shall mean: (a) issuances of securities which have been approved ---------- prior to the date hereof (including without limitation issuances under the Company's employee stock purchase plans described under Section 5.3 of the Stock Purchase Agreement), provided that such issuances are permitted under the Purchase Agreements; (b) issuances of securities which have been approved by the Board of Directors in accordance with this Agreement and by the stockholders; (c) New Securities distributed or set aside to all holders of Common Stock on a per share equivalent basis; (d) issuances pursuant to the Purchase Agreements; and (e) issuances of New Securities upon the grant, exercise or conversion of (i) options or warrants to purchase shares of Company Stock or (ii) securities which are convertible into shares of Company Stock ((i) and (ii) shall be referred to collectively as "Convertible ----------- Securities"), in each case where such ---------------------- Convertible Securities have been granted ---------- or issued prior to the date hereof or have been granted or issued in accordance with this Agreement.

Certain Purchase Rights. If At any time after the Company proposes Effective Date and prior to issuethe date on which an active trading market exists in the Common Stock (as evidenced by the Common Stock's listing on the New York Stock Exchange, sellthe American Stock Exchange, or ----------------------- grant (collectively, an "issuance") any equity securities or any securities -------- convertible into or exchangeable for equity securities (collectively, the "New --- Securities"NASDAQ National Market System), then Employee shall give Employer written notice if he desires to sell any of the Company shall, no later than ten (10) business days prior ---------- to the consummation Shares. On receipt of such issuancenotice, give written notice Employer and Employee shall seek to each of agree on a purchase price for the Stockholders of such issuance Shares (the "Notice of IssuancePurchase Price"). Such Notice If Employee and Employer agree on a Purchase Price, the amount so agreed upon shall be the Purchase Price. If Employer and Employee cannot reach agreement within fifteen (15) days of ------------------ Issuance the Employee's notice to Employer, the Purchase Price shall describe be determined by appraisal by one or more nationally recognized securities brokerage firms having offices in more than ten states in the United States ("Appraiser") in accordance with the following procedure. 1. 1.If Employer and Employee agree on a single Appraiser, the fair market value of the Shares as determined by such issuanceAppraiser shall constitute the Purchase Price. In such event, the fees and expenses of the Appraiser shall be paid jointly by Employee and Employer. 2. 2.If Employer and Employee cannot agree on a single Appraiser within twenty (20) days following the date of Employee's notice, Employer and Employee shall each designate an Appraiser and promptly notify the other party of such designation. Each Appraiser shall be instructed to value the Shares as a single unit, and contain each shall render an offer to each such Stockholder to sell to such Stockholder, at opinion of the same price and for fair market value of the same consideration to be paid by the proposed purchasers, such Stockholder's pro rata portion Shares within thirty (which 30) days after their designation. The Purchase Price in this event shall be a percentage, determined immediately prior to such issuance, equal to the percentage average of the Fully-Diluted Common Stock held by such Stockholder)Appraisers' determinations of fair market value of the Shares. Subject Each of Employer and Employee shall pay the respective fees and expenses of their appointed Appraiser. 3.Each Appraiser may consider any information, facts, and circumstances which it deems relevant to determine the foregoing, if Common Stock is being issued fair market value of the Shares. 4.Employer and Employee shall each cooperate fully with other securities as a unit, each Stockholder who desires the designated Appraiser or Appraisers. Nothing contained in this Section 6D. shall require the Employer to accept such offer must purchase such unit the Shares; but in order for such acceptance to be valid. If any such Stockholder fails to accept such offer by written notice the event that Employer does not purchase the Shares within ten (10) business days after its receipt of the Notice of Issuance, the Company shall proceed with such issuance, free of any right on the part of such Stockholder under this Section 4.1 in respect thereof. Any issuance of New Securities more than forty-five (45) days after the expiration of such ten business day period, or to a different issuee, or on terms and conditions less favorable to the Company in any material respect than those described in the notice to the Stockholders, shall be subject to a new notice to and new purchase rights by the Stockholders under this Section 4.1. This Section 4.1 shall not apply to the issuance of any Excluded Securities. For purposes of this Agreement, "Excluded -------- Securities" shall mean: (a) issuances of securities which have been approved ---------- prior to the date hereof (including without limitation issuances under the Company's employee stock purchase plans described under Section 5.3 determination of the Stock Purchase Agreement), provided that such issuances are permitted under the Purchase Agreements; (b) issuances of securities which have been approved by the Board of Directors in accordance with this Agreement and by the stockholders; (c) New Securities distributed or set aside to all holders of Common Stock on a per share equivalent basis; (d) issuances Price pursuant to the Purchase Agreements; procedure set forth in this Section, Employer shall pay the fees and expenses of all Appraisers and Employee may sell the Shares in any manner he desires, subject only to applicable securities laws. E. Investment Intent The Employee understands that the Shares are "restricted" securities within the meaning of the Securities Act of 1933, as amended (e) issuances of New Securities upon the grant, exercise or conversion of (i) options or warrants to purchase shares of Company Stock or (ii) securities which are convertible into shares of Company Stock ((i) and (ii) shall be referred to collectively as "Convertible ----------- SecuritiesAct"), and the Employee represents that such securities are being acquired by him for investment, and not with a view to, or for resale in each case where such Convertible Securities have been granted ---------- or issued prior connection with, any "distribution" within the meaning of the Act. Employee further acknowledges and agrees that certificates for the Shares delivered to him will bear the date hereof or have been granted or issued in accordance with this Agreementfollowing legend: SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED, OR OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE DISCRETION OF THE ISSUER, MAY INCLUDE AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH OFFER, SALE, PLEDGE, TRANSFER, OR OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE FEDERAL OR STATE SECURITIES LAWS.

Certain Purchase Rights. If the Company proposes directly or ----------------------- indirectly to issue, sell, or ----------------------- grant (collectively, an "issuance") any equity -------- securities or any securities -------- convertible into or exchangeable for equity securities securities, other than pursuant to the Company's IPO or any subsequent registered public offering (collectively, the "New --- Securities"), then the -------------- Company shall, no later than ten (10) business 45 calendar days prior ---------- to the consummation of such issuance, give written notice to each of the Stockholders Investors of such proposed issuance (the "Notice of Issuance"). Such Notice of ------------------ Issuance shall describe such the proposed issuance, and contain an offer to each such Stockholder Investor (other than the proposed purchasers) that in the reasonable judgment of the Company is an Accredited Investor, or who can provide the Company with an opinion of counsel, reasonably satisfactory in form and substance to the Company, that the New Securities may be sold to such Investor without registration under the Act or any state securities or "blue sky" laws (each an "Accredited Offeree") to sell to such Stockholder------------------ Accredited Offeree, at the same price and for the same consideration to be paid by the proposed purchasers, such Stockholder's Accredited Offerees pro rata portion (which shall be a percentage, determined immediately prior to such proposed issuance, equal to the percentage of the Fully-Diluted Common Stock held by such Stockholder)Accredited Offeree, provided, however, that if the use of proceeds of such New -------- ------- Securities issuance shall include the repurchase of Common Stock, then such percentage shall be calculated assuming the consummation of such repurchase of the New Securities to be sold. Subject to the foregoing, if Common Stock is being issued with other securities as a unit, each Stockholder Accredited Offeree who desires to accept such offer must purchase such unit in order for such acceptance to be valid. If any such Stockholder Accredited Offeree fails to accept such offer by written notice within ten (10) business 30 calendar days after its receipt of the Notice of Issuance, the Company shall may proceed with such proposed issuance, free of any right on the part of such Stockholder Accredited Offeree under this Section 4.1 in respect thereof. Any issuance of New Securities more than forty-five (45) days after the expiration of such ten business day period, or to a different issuee, or on terms and conditions less favorable to the Company in any material respect than those described in the notice to the Stockholders, shall be subject to a new notice to and new purchase rights by the Stockholders under this Section 4.1. This Section 4.1 shall not apply to the issuance of any Excluded Securities. For purposes of this Agreement, "Excluded -------- Securities" shall mean: (a) issuances of securities which have been approved ---------- prior to the date hereof (including without limitation issuances under the Company's employee stock purchase plans described under Section 5.3 of the Stock Purchase Agreement), provided that such issuances are permitted under the Purchase Agreements; (b) issuances of securities which have been approved by the Board of Directors in accordance with this Agreement and by the stockholders; (c) New Securities distributed or set aside to all holders of Common Stock on a per share equivalent basis; (d) issuances pursuant to the Purchase Agreements; and (e) issuances of New Securities upon the grant, exercise or conversion of (i) options or warrants to purchase shares of Company Stock or (ii) securities which are convertible into shares of Company Stock ((i) and (ii) shall be referred to collectively as "Convertible ----------- Securities"), in each case where such Convertible Securities have been granted ---------- or issued prior to the date hereof or have been granted or issued in accordance with this Agreement.2.1