Common use of Contractual Preemptive Rights Clause in Contracts

Contractual Preemptive Rights. If the Company proposes to issue, sell or otherwise transfer any shares of Common Stock (or any security convertible or exchangeable into Common Stock) of the 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 Offered Securities provided below in this Section 4.5; provided, that the provisions of this Section 4.5 shall not apply to any issuances (a) 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 proposed issuance setting forth in reasonable detail the proposed terms and conditions thereof and shall offer to each Shareholder the opportunity to purchase such securities at the same price, on the same terms (including, if more than one type of 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 by the Company. A Shareholder may exercise its preemptive rights by delivery of an irrevocable written notice to the Company not more than 10 days after delivery of the Company's notice, which notice shall state the number of 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 will issue and sell the Offered Securities to the Requesting Shareholders pro rata based on the number of Shares (determined on a Fully-Diluted basis) owned by each such Shareholder prior to the issuance at hand. If the total number of Offered Securities requested to be purchased does not equal the total number of Offered Securities proposed to be issued and sold by the Company, the Company shall give notice to each Requesting Shareholder

Contractual Preemptive Rights. If the Company proposes to issue, sell or otherwise transfer any shares of Common Stock (or any security convertible or exchangeable into Common Stock) of the 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 Offered Securities provided below in this Section 4.5; provided, that the provisions of this Section 4.5 shall not apply to any issuances (a) to any employee of the Company or any of its Subsidiaries pursuant to any stock option or similar benefit plan or any employee stock offeringoffering 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 certificate of Incorporationincorporation 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 proposed issuance setting forth in reasonable detail the proposed terms and conditions thereof and shall offer to each Shareholder the opportunity to purchase such securities at the same price, on the same terms (including, if more than one type of 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 by the Company. A Shareholder may exercise its preemptive rights by delivery of an irrevocable written notice to the Company not more than 10 days after delivery of the Company's notice, which notice shall state the number of 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 will issue and sell the Offered Securities to the Requesting Shareholders pro rata based on the number of Shares (determined on a Fully-Diluted basis) owned by each such Shareholder prior to the issuance at hand. If the total number of Offered Securities requested to be purchased does not equal the total number of Offered Securities proposed to be issued and sold by the Company, the Company shall give notice to each Requesting ShareholderShareholder and the Requesting Second Amended and Restated Investors' Agreement 22 26 Shareholders shall have three (3) days to elect to purchase the remaining Offered Securities; provided, that any over subscription shall be subject to the pro rata cut-back provision described in the preceding sentence.