Common use of Contractual Preemptive Rights Clause in Contracts

Contractual Preemptive Rights. The parties hereto agree that their respective preemptive or similar rights with respect to the issuance of Company Securities by the Company after the date hereof shall be governed exclusively by this Paragraph 2C. If prior to a Qualified Public Offering, the Company shall issue any Company Securities (including any transfer by the Company of previously-issued Company Securities), each holder of 2002 Warrant Shares, Recapitalization Common Stock or Series A Preferred Stock if a Dividend Election has not been made (and, with respect to Austin Ventures, each Affiliate of Austin Ventures (collectively, the “AV Partners”)) and the Hull Partnership shall be entitled to purchase the proportion of such Company Securities equal to the quotient determined by dividing (1) the aggregate shares of Common Stock and Series A Preferred Stock beneficially held by such holder and (2) the total number of shares of Common Stock, 2002 Warrant Shares and Series A Preferred Stock outstanding (assuming, in each case, the conversion, exercise or exchange of all outstanding Company Securities, including outstanding Company Securities held by such holder) (with respect to the AV Partners, Austin Ventures shall designate which of the AV Partners shall purchase shares and in what quantities so that the proportion of all shares purchased by the AV Partners and Austin Ventures in the aggregate is the same as if only Austin Ventures were purchasing); provided, however (a) if such holder elects to purchase such Company Securities, such holder shall be required to purchase (i) such Company Securities on the same terms and conditions as such Company Securities were issued by the Company and (ii) if more than one type of Company Security is issued and/or such Company Security is issued together with any Funded Debt, a pro rata amount of each such Company Security and/or such Funded Debt issued and (b) that such preemptive right shall not apply to (i) Company Securities issued to employees or independent contractors of or consultants to the Company under any Approved Plan, (ii) Company Securities issued in connection with an exercise of the preemptive rights granted hereunder, (iii) Series A Preferred Stock issued to Austin Ventures as a dividend or dividends in Series A Preferred Stock, (iv) Company Securities issued upon conversion of Series A Preferred Stock, (v) Company Securities issued upon exercise of the Xxxxxx Warrant or the 0000 Xxxxxxx or upon conversion of Class B Common Stock, (vi) Company Securities issued as consideration in the merger with or acquisition of another Person or an acquisition of assets other than cash, (vii) Company Securities issued in connection with a public offering, or (viii) Company Securities issued as a result of a Tax Valuation Event (as defined in the Recapitalization Agreement). A holder of Recapitalization Common Stock or Series A Preferred Stock, an AV Partner or the Hull Partnership may exercise his or its right under this Xxxxxxxxx 0X to purchase Company Securities by providing written notice to the Company within 20 days, and by paying the purchase price therefor at the principal office of the Company within 30 days, after the receipt of notice from the Company (which notice by the Company shall be given at least 30 days before the issuance of the Company Securities) stating the amount of Company Securities it intends to issue and the price and characteristics thereof. The holder, the Hull Partnership or AV Partners, as applicable, shall pay such purchase price in immediately available funds. A holder’s, the Hull Partnership’s or an AV Partner’s, as applicable, contractual preemptive rights hereunder shall be deemed to be exercised immediately prior to the close of business on the day of payment of the purchase price in accordance with the foregoing provisions, and at such time such holder, the Hull Partnership or AV Partner, as applicable, shall be treated for all purposes as the record holder of the Company Securities, as the case may be. As promptly as practicable (and in any event within 10 days) on or after the purchase date, the Company shall issue and deliver at its principal office a certificate or certificates for the number of full shares or amount, whichever is applicable, of Company Securities together with cash for any fraction of a share or portion of a Company Security at the purchase price to which the holder, the Hull Partnership or AV Partner, as applicable, is entitled hereunder.

Contractual Preemptive Rights. The Notwithstanding any preemptive or similar rights that any of the parties hereto may have pursuant to any other agreement, the parties hereto agree that their respective preemptive or similar rights with respect to the issuance of Company Securities by the Company after the date hereof shall be governed exclusively by this Paragraph 2C. Xxxxxxxxx 0X, and any such preemptive or similar rights contained in any other agreement, including without limitation, the Series A Purchase Agreement, the Series B Purchase Agreement, the Preferred B Warrants, the Series C Purchase Agreement, the Note Agreement the Mezzanine Warrants, are hereby terminated and rescinded in their entirety. If prior to a Qualified Public Offering, the Company shall issue any Company Securities (including any transfer by the Company of previously-issued Company Securities), each holder of 2002 Warrant Shares, Recapitalization Underlying Common Stock or Series A Preferred Stock if a Dividend Election has not been made (and, with respect to Austin Ventures, each Affiliate of Austin Ventures (collectively, the “AV Partners”)) and Warrant Shares and the Hull Family Limited Partnership (the "Hull Partnership") shall be entitled to purchase the same proportion of such Company Securities equal to the quotient determined by dividing (1) be issued necessary in order that the aggregate shares of Common Stock and Series A Preferred Stock beneficially held by such holder and (2) constitute the total number same percentage of shares of all Common Stock, 2002 Warrant Shares and Series A Preferred Stock outstanding (assuming, in each case, the conversion, exercise or exchange of all outstanding Company Securities, including outstanding Company Securities held by such holder) (with respect to ), after the AV Partners, Austin Ventures shall designate which issuance of such Company Securities as before the AV Partners shall purchase shares and in what quantities so that the proportion of all shares purchased by the AV Partners and Austin Ventures in the aggregate is the same as if only Austin Ventures were purchasing)issuance thereof; provided, however however, (a) if such holder elects to purchase such Company Securities, such holder shall be required to purchase (i) such Company Securities on the same terms and conditions as such Company Securities were issued by the Company and (ii) if more than one type of Company Security is issued and/or such Company Security is issued together with any Funded Debtissued, a pro rata amount of each such Company Security and/or such Funded Debt issued and (b) that such preemptive right shall not apply to (i) Company Securities issued to employees or independent contractors of or consultants to the Company under any Approved Plan, (ii) Company Securities issued upon the conversion, exercise or exchange of Company Securities to which the preemptive rights under this Paragraph 2C were previously applicable, (iii) Company Securities issued in connection with an exercise of the preemptive rights granted hereunder, (iii) Series A Preferred Stock issued to Austin Ventures as a dividend or dividends in Series A Preferred Stock, (iv) Company Securities issued upon conversion of pursuant to the Series A Preferred StockC Exchange Agreement or the Series D-1 Purchase Agreement, (v) Company Securities issued upon conversion of the Preferred Stock or exercise of the Warrants, the 2001 Warrants and the Xxxxxx Warrant or the 0000 Xxxxxxx or upon conversion of Class B Common StockStock issued upon exercise of the Xxxxxx Warrant, (vi) Company Securities issued as consideration in the merger with or acquisition of another Person or an acquisition of assets other than cashPerson, (vii) Company Securities issued in connection with a public offering, or (viii) Company Securities shares of Class A Common Stock issued as a result in payment of a Tax Valuation Event (as defined in dividends on Series A Preferred Stock or Series C Preferred Stock pursuant to Article IV, Paragraph 5L of the Recapitalization Agreement)Articles of Incorporation. A holder of Recapitalization Underlying Common Stock or Series A Preferred Stock, an AV Partner Warrant Shares or the Hull Partnership may exercise his or its right under this Xxxxxxxxx 0X to purchase Company Securities by providing written notice to the Company within 20 days, and by paying the purchase price therefor at the principal office of the Company within 30 days, after the receipt of notice from the Company (which notice by the Company shall be given at least 30 days before the issuance of the Company Securities) stating the amount of Company Securities it intends to issue and the price and characteristics thereof. The holder, the Hull Partnership or AV Partners, as applicable, holder shall pay such purchase price in immediately available funds. A holder’s, the Hull Partnership’s or an AV Partner’s, as applicable, 's contractual preemptive rights hereunder shall be deemed to be exercised immediately prior to the close of business on the day of payment of the purchase price in accordance with the foregoing provisions, and at such time such holder, the Hull Partnership or AV Partner, as applicable, holder shall be treated for all purposes as the record holder of the Company Securities, as the case may be. As promptly as practicable (and in any event within 10 days) on or after the purchase date, the Company shall issue and deliver at its principal office a certificate or certificates for the number of full shares or amount, whichever is applicable, of Company Securities together with cash for any fraction of a share or portion of a Company Security at the purchase price to which the holder, the Hull Partnership or AV Partner, as applicable, holder is entitled hereunder.

Contractual Preemptive Rights. The parties hereto agree that their respective preemptive or similar rights with respect to the issuance of Company Securities by If the Company after the date hereof shall be governed exclusively by this Paragraph 2C. If prior proposes to a Qualified Public Offeringissue, the Company shall issue sell or otherwise transfer any Company Securities (including any transfer by the Company of previously-issued Company Securities), each holder of 2002 Warrant Shares, Recapitalization Common Stock or Series A Preferred Stock if a Dividend Election has not been made (and, with respect to Austin Ventures, each Affiliate of Austin Ventures (collectively, the “AV Partners”)) and the Hull Partnership shall be entitled to purchase the proportion of such Company Securities equal to the quotient determined by dividing (1) the aggregate shares of Common Stock and Series A Preferred Stock beneficially held by such holder and (2or any security convertible or exchangeable into Common Stock) of the total Company (the "OFFERED SECURITIES"), each Shareholder who is an accredited investor (as defined under Rule 501 of Regulation D) shall have the right to purchase the number of shares of Common Stock, 2002 Warrant Shares and Series A Preferred Stock outstanding (assuming, Offered Securities provided below in each case, the conversion, exercise or exchange of all outstanding Company Securities, including outstanding Company Securities held by such holder) (with respect to the AV Partners, Austin Ventures shall designate which of the AV Partners shall purchase shares and in what quantities so that the proportion of all shares purchased by the AV Partners and Austin Ventures in the aggregate is the same as if only Austin Ventures were purchasing)this Section 4.5; provided, however that the provisions of this Section 4.5 shall not apply to any issuances (a) if to any employee of the Company or any of its Subsidiaries pursuant to any stock option or similar benefit plan or any employee stock offering, (b) in connection with a Public Offering, (c) of any Common Stock in payment of any dividend on the Common Stock pursuant to the terms of the Certificate of Incorporation, (d) of any Common Stock in a merger, stock exchange, purchase of assets or similar transaction, (e) of any Common Stock upon exercise of the Warrants or (f) of any Common Stock to any Person that is not a Shareholder or an Affiliate of a Shareholder at the time of issuance. The Company shall give each Shareholder at least 20 days' prior written notice of any such holder elects proposed issuance setting forth in reasonable detail the proposed terms and conditions thereof and shall offer to each Shareholder the opportunity to purchase such Company Securitiessecurities at the same price, such holder shall be required to purchase (i) such Company Securities on the same terms and conditions as such Company Securities were issued by the Company and (ii) including, if more than one type of Company Security security is issued, each type of security in the same proportion offered), and at the same time as the securities are proposed to be issued and/or such Company Security is issued together with any Funded Debt, a pro rata amount of each such Company Security and/or such Funded Debt issued and (b) that such preemptive right shall not apply to (i) Company Securities issued to employees or independent contractors of or consultants to by the Company under any Approved Plan, (ii) Company Securities issued in connection with an Company. A Shareholder may exercise of the its preemptive rights granted hereunder, (iii) Series A Preferred Stock issued to Austin Ventures as a dividend or dividends in Series A Preferred Stock, (iv) Company Securities issued upon conversion by delivery of Series A Preferred Stock, (v) Company Securities issued upon exercise of the Xxxxxx Warrant or the 0000 Xxxxxxx or upon conversion of Class B Common Stock, (vi) Company Securities issued as consideration in the merger with or acquisition of another Person or an acquisition of assets other than cash, (vii) Company Securities issued in connection with a public offering, or (viii) Company Securities issued as a result of a Tax Valuation Event (as defined in the Recapitalization Agreement). A holder of Recapitalization Common Stock or Series A Preferred Stock, an AV Partner or the Hull Partnership may exercise his or its right under this Xxxxxxxxx 0X to purchase Company Securities by providing irrevocable written notice to the Company within 20 days, and by paying the purchase price therefor at the principal office not more than 10 days after delivery of the Company within 30 daysCompany's notice, after which notice shall state the receipt number of notice from Offered Securities such Shareholder (each a "REQUESTING SHAREHOLDER" and collectively, the "REQUESTING SHAREHOLDERS") would like to purchase. If the total number of Offered Securities requested to be purchased exceeds the total number of Offered Securities proposed to be issued and sold by the Company, then the Company (which notice by the Company shall be given at least 30 days before the issuance of the Company Securities) stating the amount of Company Securities it intends to will issue and sell the price and characteristics thereof. The holder, Offered Securities to the Hull Partnership or AV Partners, as applicable, shall pay Requesting Shareholders pro rata based on the number of Shares (determined on a Fully-Diluted basis) owned by each such purchase price in immediately available funds. A holder’s, the Hull Partnership’s or an AV Partner’s, as applicable, contractual preemptive rights hereunder shall be deemed to be exercised immediately Shareholder prior to the close issuance at hand. If the total number of business on Offered Securities requested to be purchased does not equal the day total number of payment of Offered Securities proposed to be issued and sold by the purchase price in accordance with the foregoing provisions, and at such time such holder, the Hull Partnership or AV Partner, as applicable, shall be treated for all purposes as the record holder of the Company Securities, as the case may be. As promptly as practicable (and in any event within 10 days) on or after the purchase dateCompany, the Company shall issue and deliver at its principal office a certificate or certificates for the number of full shares or amount, whichever is applicable, of Company Securities together with cash for any fraction of a share or portion of a Company Security at the purchase price give notice to which the holder, the Hull Partnership or AV Partner, as applicable, is entitled hereunder.each Requesting Shareholder

Contractual Preemptive Rights. The parties hereto agree that their respective preemptive or similar rights with respect to the issuance of Company Securities by If the Company after the date hereof shall be governed exclusively by this Paragraph 2C. If prior proposes to a Qualified Public Offeringissue, the Company shall issue sell or otherwise transfer any Company Securities (including any transfer by the Company of previously-issued Company Securities), each holder of 2002 Warrant Shares, Recapitalization Common Stock or Series A Preferred Stock if a Dividend Election has not been made (and, with respect to Austin Ventures, each Affiliate of Austin Ventures (collectively, the “AV Partners”)) and the Hull Partnership shall be entitled to purchase the proportion of such Company Securities equal to the quotient determined by dividing (1) the aggregate shares of Common Stock and Series A Preferred Stock beneficially held by such holder and (2or any security convertible or exchangeable into Common Stock) of the total Company (the "OFFERED SECURITIES"), each Shareholder who is an accredited investor (as defined under Rule 501 of Regulation D) shall have the right to purchase the number of shares of Common Stock, 2002 Warrant Shares and Series A Preferred Stock outstanding (assuming, Offered Securities provided below in each case, the conversion, exercise or exchange of all outstanding Company Securities, including outstanding Company Securities held by such holder) (with respect to the AV Partners, Austin Ventures shall designate which of the AV Partners shall purchase shares and in what quantities so that the proportion of all shares purchased by the AV Partners and Austin Ventures in the aggregate is the same as if only Austin Ventures were purchasing)this Section 4.5; provided, however that the provisions of this Section 4.5 shall not apply to any issuances (a) if to any employee of the Company or any of its Subsidiaries pursuant to any stock option or similar benefit plan or any employee stock offering approved by the Board, (b) in connection with a Public Offering, (c) of any Common Stock in payment of any dividend on the Common Stock pursuant to the terms of the certificate of incorporation of the Company, (d) of any Common Stock in a merger, stock exchange, purchase of assets or similar transaction, (e) of the Warrants or of any Common Stock upon exercise of the Warrants or (f) of any Common Stock to any Person that is not a Shareholder or an Affiliate of a Shareholder at the time of issuance. The Company shall give each Shareholder at least 20 days' prior written notice of any such holder elects proposed issuance setting forth in reasonable detail the proposed terms and conditions thereof and shall offer to each Shareholder the opportunity to purchase such Company Securitiessecurities at the same price, such holder shall be required to purchase (i) such Company Securities on the same terms and conditions as such Company Securities were issued by the Company and (ii) including, if more than one type of Company Security security is issued, each type of security in the same proportion offered), and at the same time as the securities are proposed to be issued and/or such Company Security is issued together with any Funded Debt, a pro rata amount of each such Company Security and/or such Funded Debt issued and (b) that such preemptive right shall not apply to (i) Company Securities issued to employees or independent contractors of or consultants to by the Company under any Approved Plan, (ii) Company Securities issued in connection with an Company. A Shareholder may exercise of the its preemptive rights granted hereunder, (iii) Series A Preferred Stock issued to Austin Ventures as a dividend or dividends in Series A Preferred Stock, (iv) Company Securities issued upon conversion by delivery of Series A Preferred Stock, (v) Company Securities issued upon exercise of the Xxxxxx Warrant or the 0000 Xxxxxxx or upon conversion of Class B Common Stock, (vi) Company Securities issued as consideration in the merger with or acquisition of another Person or an acquisition of assets other than cash, (vii) Company Securities issued in connection with a public offering, or (viii) Company Securities issued as a result of a Tax Valuation Event (as defined in the Recapitalization Agreement). A holder of Recapitalization Common Stock or Series A Preferred Stock, an AV Partner or the Hull Partnership may exercise his or its right under this Xxxxxxxxx 0X to purchase Company Securities by providing irrevocable written notice to the Company within 20 days, and by paying the purchase price therefor at the principal office not more than 10 days after delivery of the Company within 30 daysCompany's notice, after which notice shall state the receipt number of notice from Offered Securities such Shareholder (each a "REQUESTING SHAREHOLDER" and collectively, the "REQUESTING SHAREHOLDERS") would like to purchase. If the total number of Offered Securities requested to be purchased exceeds the total number of Offered Securities proposed to be issued and sold by the Company, then the Company (which notice by the Company shall be given at least 30 days before the issuance of the Company Securities) stating the amount of Company Securities it intends to will issue and sell the price and characteristics thereof. The holder, Offered Securities to the Hull Partnership or AV Partners, as applicable, shall pay Requesting Shareholders pro rata based on the number of Shares (determined on a Fully-Diluted basis) owned by each such purchase price in immediately available funds. A holder’s, the Hull Partnership’s or an AV Partner’s, as applicable, contractual preemptive rights hereunder shall be deemed to be exercised immediately Shareholder prior to the close issuance at hand. If the total number of business on Offered Securities requested to be purchased does not equal the day total number of payment of Offered Securities proposed to be issued and sold by the purchase price in accordance with the foregoing provisions, and at such time such holder, the Hull Partnership or AV Partner, as applicable, shall be treated for all purposes as the record holder of the Company Securities, as the case may be. As promptly as practicable (and in any event within 10 days) on or after the purchase dateCompany, the Company shall issue give notice to each Requesting Shareholder and deliver at its principal office a certificate or certificates for the number of full shares or amountRequesting Second Amended and Restated Investors' Agreement 22 26 Shareholders shall have three (3) days to elect to purchase the remaining Offered Securities; provided, whichever is applicable, of Company Securities together with cash for that any fraction of a share or portion of a Company Security at over subscription shall be subject to the purchase price to which pro rata cut-back provision described in the holder, the Hull Partnership or AV Partner, as applicable, is entitled hereunderpreceding sentence.

Contractual Preemptive Rights. The parties hereto agree that their respective preemptive or similar rights with respect to the issuance of Company Securities by the Company after the date hereof shall be governed exclusively by this Paragraph 2C. If prior to a Qualified Public Offering, the Company shall issue any Company Securities (including any transfer by the Company of previously-issued Company Equity Securities), each holder of 2002 Warrant Shares, Recapitalization Underlying Common Stock or Series A Preferred Stock if a Dividend Election has not been made (and, with respect to Austin Ventures, each Affiliate of Austin Ventures (collectively, the “AV Partners”)) and the Hull Partnership shall be entitled to purchase the proportion portion of such Company Equity Securities equal to the quotient determined by dividing (1) the be issued necessary in order that the. aggregate shares of Common Stock and Series A Preferred Underlying Common Stock beneficially held by such holder and (2) constitute the total number same percentage of shares of all Common Stock, 2002 Warrant Shares and Series A Preferred Stock outstanding (assuming, in each case, the conversion, exercise or exchange of all outstanding Company Equity Securities, including outstanding Company Equity Securities held by such holder) (with respect to after the AV Partners, Austin Ventures shall designate which issuance of such Equity Securities as before the AV Partners shall purchase shares and in what quantities so that the proportion of all shares purchased by the AV Partners and Austin Ventures in the aggregate is the same as if only Austin Ventures were purchasing)issuance thereof; provided, however (a) if such holder elects to purchase such Company Securitieshowever, such holder shall be required to purchase (i) such Company Securities on the same terms and conditions as such Company Securities were issued by the Company and (ii) if more than one type of Company Security is issued and/or such Company Security is issued together with any Funded Debt, a pro rata amount of each such Company Security and/or such Funded Debt issued and (b) that such preemptive right shall not apply to (ia) Company issuances of Equity Securities issued to employees or independent contractors of or consultants the Company as and to the Company under any Approved Planextent permitted by paragraph 4D(iv), (iib) Company issuances of Equity Securities issued upon the conversion, exercise or exchange of other Equity Securities to which the preemptive rights granted hereunder were applicable, (c) issuances of Equity Securities in connection with an exercise of the preemptive rights granted hereunder, or (iiid) Series A issuances of Preferred Stock issued pursuant to Austin Ventures this Agreement or issuances of Common Stock or other Equity Securities as a dividend or dividends in Series A other distribution with respect to the Preferred Stock, (iv) Company Securities issued upon conversion of Series A Preferred Stock, (v) Company Securities issued upon exercise of the Xxxxxx Warrant or the 0000 Xxxxxxx Stock or upon conversion of Class B Common the Preferred Stock, (vi) Company Securities issued as consideration in . The price of securities which each holder becomes entitled to purchase by reason hereof shall be the merger with or acquisition of another Person or an acquisition of assets other than cash, (vii) Company Securities issued in connection with a public offering, or (viii) Company Securities issued as a result of a Tax Valuation Event (as defined in the Recapitalization Agreement)same price at which such securities are offered to others. A holder of Recapitalization Underlying Common Stock or Series A Preferred Stock, an AV Partner or the Hull Partnership may exercise his or its right under this Xxxxxxxxx 0X paragraph 7P to purchase Company Equity Securities by providing written notice to the Company within 20 days, and by paying the purchase price therefor at the principal office of the Company within 30 days, 15 days after the receipt of notice from the Company (which notice by the Company shall be given at least 30 20 days before the issuance of the Company Equity Securities) stating the amount of Company Equity Securities it intends to issue and the price and characteristics thereof. The holder, the Hull Partnership or AV Partners, as applicable, holder shall pay such purchase price in immediately available fundscash or by check; provided, however, that if the Company is indebted to such holder, the holder shall be entitled, at the holder's sole option, to credit against the purchase price all or any portion of the Company's indebtedness to such holder which is then due (accrued and unpaid dividends on the Preferred Stock shall be deemed to be indebtedness for purposes of such credit). A holder’s, the Hull Partnership’s or an AV Partner’s, as applicable, 's contractual preemptive rights hereunder shall be deemed to be exercised immediately prior to the close of business on the day of payment of the purchase price in accordance with the foregoing provisions, and at such time such holder, the Hull Partnership or AV Partner, as applicable, holder shall be treated for all purposes as the record holder of the Company Equity Securities, as the case may be. As promptly as practicable (and in any event within 10 ten days) on or after the purchase date, the Company shall issue and deliver at its principal office a certificate or certificates for the number of full shares or amount, whichever is applicable, of Company Equity Securities together with cash for any fraction of a share or portion of a Company an Equity Security at the purchase price to which the holder, the Hull Partnership or AV Partner, as applicable, holder is entitled hereunder.. * * *