Common use of Preemptive Rights Clause in Contracts

Preemptive Rights. So long as this Debenture is outstanding and owned by the Holder, the Holder shall have a preemptive right (that is, a right to purchase its pro rata share of all capital stock of the Company on a fully diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock of the Company, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) above.

Preemptive Rights. So long as this Debenture is outstanding 15% of the Notes issued to Subscribers on the last Closing Date to occur remain outstanding, if the Company offers to sell Covered Securities (as defined below) in a public or private offering of Covered Securities solely for cash (a “Qualified Offering”), each Subscriber shall be afforded the opportunity to acquire from the Company, for the same price and on the same terms as such Covered Securities are offered, in the aggregate up to the amount of Covered Securities required to enable it to maintain its Subscriber Percentage Interest. “Subscriber Percentage Interest” means, as of any date of determination, the percentage equal to (A) the aggregate number of shares of Common Stock beneficially owned by the Holder, the Holder shall have a preemptive right (that is, a right to purchase its pro rata share of all capital stock Subscriber as of the Company on a fully diluted basis assuming date of determination divided by (B) the exercise total number of this Debenture outstanding shares of Common Stock as of such date. “Covered Securities” means Common Stock and of all other outstanding any rights, options and or warrants to purchase capital or securities convertible into or exercisable or exchangeable for Common Stock, other than (i) securities issuable upon conversion of any of the Notes or upon exercise of the Warrants; (ii) securities issued upon the conversion or exercise of any debenture, warrant, option, or other convertible security which is outstanding as of the first Closing Date to occur; (iii) Common Stock issuable upon a stock split, stock dividend, or any subdivision of shares of Common Stock approved by Company stockholders; (iv) shares of Common Stock (or options, convertible securities, or other rights to purchase such shares of Common Stock) issued or issuable to employees or directors of, or consultants providing bona fide services to, the Company pursuant to an Approved Stock Plan (as defined below) provided that all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options or convertible securities) after the date hereof pursuant to this clause (iv) do not, in the aggregate, exceed 10% of the Common Stock issued and outstanding, (v) Common Stock, options or convertible securities issued to banks, equipment lessors or other financial institutions pursuant to a debt financing or equipment leasing approved by the board of directors of the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold(vi) to acquire any shares of capital stock Common Stock, options or convertible securities issued to suppliers or third party service providers in connection with the provision of goods or services pursuant to transactions approved by the board of directors of the Company, including unissued (vii) shares of Common Stock, options or any rights or options convertible securities issued as acquisition consideration pursuant to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation by the Company by merger, purchase of substantially all of the assets or other entity; or (ii) issued upon reorganization, each as approved by the exercise board of warrants or options held by officers, directors or other employees of the Company and the stockholders of the Company, and (viii) shares of Common Stock, Options, or warrants Convertible Securities issued pursuant to that certain Asset Purchase Agreement between the Company and Intersect Beverage, LLC dated as of September 12, 2019 (each an “Excluded Issuance”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard rights, warrants, or options to subscribe for, purchase, or otherwise acquire Common Stock may be issued to Senior Lendersany employee, officer, or director for services provided to the Company in their capacity as such. In connection with Prior to making any Qualified Offering of Covered Securities, the Company shall give the Subscriber written notice at the address shown on each Subscriber’s signature page hereto of its intention to make such an offering, describing, to the extent then known, the anticipated amount of securities, and other material terms then known to the Company upon which the Company proposes to offer the same (such notice, a “Qualified Offering Notice”). The Subscriber shall then have 10 days after receipt of the Qualified Offering Notice (the “Offer Period”) to notify the Company in writing that it intends to exercise such preemptive right and as to the amount of options granted Covered Securities the Subscriber desires to purchase, up to the maximum amount calculated pursuant to this Section 9(b) (the “Designated Securities”). Such notice constitutes a non-binding indication of interest of the Subscriber to purchase the amount of Designated Securities specified by the Subscriber (or a proportionately lesser amount if the amount of Covered Securities to be offered in such Qualified Offering is subsequently reduced) at the price (or range of prices) established in the Qualified Offering and other terms set forth in the Company's employee stock option plans ’s notice to it. Any failure to respond or to confirm the Subscriber’s interest in connection with purchasing any Covered Securities to which it is entitled under this Section 9(b) during the exercise Offer Period constitutes a waiver of warrants issued its preemptive rights in respect of such offering or as to the Senior LendersCovered Securities as to which no interest in purchasing is received, as applicable. The sale of the Holder Covered Securities in the Qualified Offering, including any Designated Securities, shall have be closed not later than 120 days after the option at any time or from time end of the Offer Period. The Covered Securities to time during the term of this Debenture be sold to purchase Shares other investors in such Qualified Offering shall be sold at a price of $10 per share not less than, and upon terms no more favorable to such other investors than, those specified in order to maintain its percentage holdings of the capital stock of Qualified Offering Notice. If the Company on does not consummate the date hereof on a fullysale of Covered Securities to other investors within such 120-diluted basis assuming day period, the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; right provided that the $10 per share purchase price hereunder shall be subject revived and such securities shall not be offered unless first reoffered to adjustment as provided the Subscribers in Section 2.5 above; accordance herewith. Notwithstanding anything to the contrary set forth herein and provided further that unless otherwise agreed by the determination Subscriber, by not later than the end of the Holder's percentage holdings of the capital stock of such 120-day period, the Company shall either confirm in writing to the Subscriber that the Qualified Offering has been abandoned or shall publicly disclose its intention to issue the Covered Securities in the Qualified Offering, in either case in such a manner that the Subscriber will not be adjusted downward each time in possession of any material, non-public information thereafter. If the Holder fails to exercise Subscriber exercises its preemptive rights as right provided in this Section 4.9 9(b) with respect to a Qualified Offering that is an underwritten public offering or an offering made to qualified institutional buyers (as such term is defined in the Commission’s Rule 144A under the 1000 Xxx) for resale pursuant to Rule 144A under the 1933 Act (a “Rule 144A offering”), a private placement or other offering, whether not registered under the 1933 Act, the Company shall offer and sell the Subscriber, if any such offering is consummated, the Designated Securities (as adjusted, upward to reflect the actual size of such offering when priced but not in excess of each time any shares Subscriber’s Subscriber Percentage Interest) at the same price as the Covered Securities are offered to third persons (not including the underwriters or the initial purchasers in a Rule 144A offering that is being reoffered by the initial purchasers) in such offering and shall provide written notice of capital stock are issued as described in clause (i) abovesuch price upon the determination of such price.

Preemptive Rights. So long (a) The Company hereby grants to each Series B Preferred Stockholder who owns at least 10,000 shares of Series B Convertible Preferred Stock and to each Series C Preferred Stockholder who owns at least 10,000 shares of Series C Convertible Preferred Stock (in each case as this Debenture is outstanding adjusted for stock splits, stock combinations and owned by the similar events), and to each Warrant Holder, the Holder shall have a preemptive right (that is, a right but not the obligation) to purchase its pro rata share of all capital stock any New Securities that the Company may, from time to time, propose to sell and issue. Each Holder’s pro rata share, for purposes of this right, is the ratio of the Company number of shares of Common Stock Equivalents then held by the Series B Preferred Stockholder, the Series C Preferred Stockholder or the Warrant Holder immediately prior to the issuance of the New Securities, on a fully diluted basis assuming an as converted basis, and the exercise number of shares of Common Stock Equivalents outstanding (whether vested or unvested) immediately prior to the issuance of the New Securities, on an as converted basis. For purposes of this Debenture and of all other outstanding options and warrants to purchase capital Section 4, “New Securities” shall mean any common stock or preferred stock of the Company, based on its holdings at whether now authorized or not, and rights, options or warrants to purchase such common stock or preferred stock, and securities of any type whatsoever that dateare, on the same or by their terms and conditions as those upon which such capital may become, convertible into or exchangeable for common stock is proposed to be sold) to acquire any shares of capital or preferred stock of the Company, including unissued but shall not include: (i) shares or any of Common Stock to be issued upon conversion of the Series B Convertible Preferred Stock, (ii) shares of Common Stock to be issued upon conversion of the Series C Convertible Preferred Stock, (iii) shares of Common Stock, warrants, options and other rights or options to purchase such capital stock, or any shares of Common Stock and securities convertible into shares of Common Stock, issued to officers, directors and employees of, and consultants to, the Corporation as compensation for bona fide services provided or to be provided to the Company by such capital stock (collectively, "Capital Stock"), authorized persons and approved by the Board of Directors or the Compensation Committee, as the case may be, (iv) an aggregate of 75,000 shares of Common Stock or Common Stock issuable upon the exercise of options, warrants or other rights of the Company for issued to financial institutions or lessors in connection with commercial credit transactions, equipment financings or similar transactions approved by the Board of Directors, and the issuance after of Common Stock upon the date hereof; provided, however, that the foregoing provision shall not apply to exercise of any such Capital Stock options, warrants or other rights and (v) any of the Company: (i) issued Warrants or any shares of common stock to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) be issued upon the exercise of warrants or options held by officers, directors or other employees any of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) aboveWarrants.

Preemptive Rights. So long as this Debenture is Holders of our common stock have no preemptive rights and no conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to our common stock. All the outstanding shares of common stock are, and owned by the Holderall shares of common stock offered, when issued and paid for, will be, validly issued, fully paid and non-assessable. The rights, preferences and privileges of holders of our common stock are subject to, and may be adversely affected by, the Holder shall rights of the holders of any shares of our preferred stock. Preferred Stock Our Certificate provides that we may issue up to 5,000,000 shares of preferred stock in one or more series as may be determined by our board of directors. Our board of directors has broad discretionary authority with respect to the rights of any new series of preferred stock and may establish the following with respect to the shares in each series, without any vote or action of the stockholders: • the number of shares; • the designations, preferences, privileges, and rights, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences; and • any limits or restrictions. We believe that the ability of our board of directors to issue one or more series of preferred stock provides us with flexibility in structuring possible future financings and acquisitions, and in meeting other corporate needs that may arise. The authorized shares of preferred stock, as well as authorized and unissued shares of common stock, are available for issuance without action by our stockholders, unless such action is required by applicable law or the rules of any stock exchange or automated quotation system on which our securities may be listed or traded. Our board of directors may authorize, without stockholder approval, the issuance of preferred stock with voting and conversion rights that could adversely affect the voting power and other rights of holders of common stock. Although our board of directors has no current intention of doing so, it could issue a series of preferred stock that could, depending on the terms of such series, impede the completion of a merger, tender offer or other takeover attempt of our Company. Our board of directors could also issue preferred stock having terms that could discourage an acquisition attempt through which an acquiror may be able to change the composition of our board of directors, including a tender offer or other transaction that some, or a majority, of our stockholders might believe to be in their best interests or in which stockholders might receive a premium for their stock over the then-current market price. Any issuance of preferred stock therefore could have the effect of decreasing the market price of our common stock. The Nasdaq Capital Market Listing Our common stock is listed on The Nasdaq Capital Market under the symbol “BBI.” Transfer Agent and Registrar The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC. Its address is 0000 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 and its telephone number is (000) 000-0000. Anti-Takeover Provisions Our Certificate, Bylaws and certain provisions of the DGCL may have an anti-takeover effect. These provisions may delay, defer or prevent a preemptive right (tender offer or takeover attempt that is, a right stockholder would consider in its best interest. This includes an attempt that might result in a premium over the market price for the shares of common stock held by stockholders. These provisions are expected to purchase its pro rata share discourage certain types of all capital stock coercive takeover practices and inadequate takeover bids. They are also expected to encourage persons seeking to acquire control of the Company on a fully diluted basis assuming the exercise to negotiate first with our board of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock of the Company, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, directors. We believe that the foregoing provision shall not apply to any such Capital Stock benefits of these provisions outweigh the Company: (i) issued to effect any mergerpotential disadvantages of discouraging takeover proposals because, consolidationamong other things, recapitalization, or acquisition negotiation of assets or acquisition takeover proposals might result in an improvement of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) abovetheir terms.

Preemptive Rights. So long as this Debenture is outstanding (a) If at any time after the date hereof and owned by prior to the Holderconsummation of a Qualified Public Offering the Company wishes to issue any Preferred Units, Common Units or any options, warrants or other rights to acquire Preferred Units, Common Units or any notes or other securities convertible or exchangeable into Preferred Units, Common Units (all such Preferred Units, Common Units and other rights and securities, collectively, the Holder "Equity Equivalents") to any ------------------ Person or Persons, the Company shall have promptly deliver a preemptive right notice of intention to sell or otherwise issue (that is, the "Company's Notice of Intention to Sell") to each ------------------------------------- Equityholder setting forth a right to purchase its pro rata share of all capital stock description and the number of the Company on a fully diluted basis assuming Equity Equivalents and any other securities proposed to be issued and the exercise proposed purchase price and terms of this Debenture and of all other outstanding options and warrants to purchase capital stock sale. Upon receipt of the Company's Notice of Intention to Sell, based on its holdings each Equityholder shall have the right to elect to purchase, at that date, the price and on the same terms and conditions as those upon which such capital stock is proposed stated in the Company's Notice of Intention to be sold) to acquire any shares of capital stock Sell, a number of the Company, including unissued shares or any rights or options Equity Equivalents equal to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board product of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees such Equityholder's proportionate ownership of the Company or warrants issued to Senior Lenders. In connection with the exercise then outstanding number of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof Common Units (calculated on a fully-diluted basis assuming the exercise all holders of this Debenture and of all other then outstanding warrants, options and convertible securities of the Company which are convertible or exercisable on such date and which have preemptive rights with respect to the applicable issuance of Equity Equivalents have converted such convertible securities or exercised such warrants or options) held by all Persons multiplied by (ii) the number of Equity Equivalents proposed to be issued (as described in the applicable Company's Notice of Intention to Sell). Notwithstanding anything contained herein to the contrary, if the Company is issuing Equity Equivalents together as a unit with the issuance of any debt or other equity securities of the Company or any of its Subsidiaries, then any Equityholder who elects to purchase capital stock such Equity Equivalents pursuant to this Section 10 must also purchase a corresponding proportion of such other debt or equity securities, all at the proposed purchase price and on terms of sale as specified in the applicable Company's Notice of Intention to Sell. Such election shall be made by the electing Equityholder by written notice to the Company within ten (10) Business Days after receipt by such Equityholder of the Company; provided that 's Notice of Intention to Sell (the $10 per share purchase price shall be subject "Acceptance Period"). With respect to adjustment as provided any Company's Notice of ----------------- Intention to Sell delivered to any Equityholder which is BACI, New York Life, Northwestern, AMFM or ABRY, or an Affiliate of these entities, such Equityholder may assign in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise whole or in part its preemptive rights as provided in pursuant to this Section 4.9 10 with respect to the sale or issuance of the Equity Equivalents which are the subject of such Company's Notice of Intention to Sell to any Affiliate of such Equityholder (a "Section 10 Assignee"); provided, that as a condition to the ------------------- -------- sale or issuance of the applicable Equity Equivalents to such Section 10 Assignee, such Section 10 Assignee must execute and each time deliver to the Company a joinder to this Agreement substantially in the form of Exhibit A hereto pursuant --------- to which such Section 10 Assignee shall be deemed to be (A) a "Preferred Investor," an "AMFM Investor," or an "ABRY Investor," (B) as applicable for the assignee of any shares rights from BACI, New York Life, Northwestern and AMFM, an "Other Investor," and (C) an "Equityholder" for purposes of capital stock are issued as described in clause (i) abovethis Agreement.

Preemptive Rights. So (a) In the event of any offering of New Securities (as defined below) by the Company, each Investor, for so long as this Debenture is outstanding and owned by the HolderNotes, the Holder Warrants or any Note Shares or Warrant Shares remain outstanding, shall have a preemptive right (that is, a the right to purchase its pro rata share a percentage of all capital stock the New Securities being offered that is equal to the percentage of the outstanding Common Stock of the Company owned by such Investor on a fully diluted an as-converted basis assuming (treating for this purpose as outstanding all shares of Common Stock issuable upon the full exercise of this Debenture the Warrants and of all other outstanding options and warrants to purchase capital stock full conversion of the CompanyNotes then outstanding, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock including conversion of the Companymaximum amount of Interest scheduled to accrue during the First Five Year Note Period (as defined in the Notes)); provided, including unissued shares or any rights or options however, that this right shall not apply to purchase such capital stock(i) equity compensation grants to employees, consultants, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized directors pursuant to plans or other arrangements approved by the Board of Directors of the Company for issuance after the date hereof; providedCompany, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) securities issued upon the conversion or exercise of warrants any convertible or options held by officers, directors or other employees exercisable securities that are outstanding as of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise terms in effect on such date, (iii) the issuance of this Debenture and securities in connection with any underwritten public offering (excluding, for the avoidance of all doubt, registered direct offerings); (iv) securities issued upon any split, dividend, combination or other outstanding options and warrants similar event with respect to purchase the capital stock of the Company; (v) securities subsequently issued upon conversion, exercise or exchange of those securities that have been issued in compliance with, or on issuance were exempt from the preemptive rights provided for in this Section 5.2, and (vi) shares of Common Stock or convertible securities issued or issuable in connection with mergers, acquisitions, strategic transactions, and debt financings approved by the Board of Directors of the Company, including the Investor Designee; provided, further, that in connection with any underwritten public offering, the $10 per share Company will use reasonable best efforts to allow each Investor to purchase price a sufficient amount of such offered securities so as to maintain as closely as possible such Investor’s proportionate interest in the Company on an as-converted basis as described above (disregarding any allocations of such offered securities that may be made by the underwriters to Affiliates of any Investor in the ordinary course investment business of such Affiliates). An Investor shall be subject deemed to adjustment as provided in have waived its rights under this Section 2.5 above; and provided further that 5.4 if such Investor shall have not delivered to the determination Company its written election to purchase such securities within ten (10) Business Days of receipt of the Holder's percentage holdings Company’s notice of such offering describing the capital stock of material terms thereof (such ten (10) Business Day period, the “Offer Period”). If the Investor fail to exercise their purchase right pursuant to this Section 5.2, then the Company shall be adjusted downward each time have the Holder fails right, until the expiration of ninety (90) days commencing upon the expiration of the Offer Period, to exercise its preemptive rights as provided issue such New Securities to one (1) or more third parties on terms no more favorable to the purchasers thereof than the terms specified in the Company’s notice of such offering to the Investor, after which the terms of this Section 4.9 and each time any shares 5.4 shall again apply to the Company’s offering of capital stock are issued as described in clause (i) abovesuch New Securities.

Preemptive Rights. So long as this Debenture (a) From Closing until such time that the SLS Beneficial Ownership Percentage is outstanding and owned by the Holderless than 10%, the Holder Company shall have a preemptive not issue any Company Securities to any Person, unless the Company offers the right (that is, a right the “Participation Right”) to each Investor Securityholder to purchase its pro rata share portion (as specified below) of all capital stock of such Company Securities at the Company on a fully diluted basis assuming the exercise of this Debenture same price per security (payable in cash) and of all other outstanding options and warrants to purchase capital stock of the Company, based on its holdings at that date, on otherwise upon the same terms and conditions as those upon which offered to such capital stock is proposed to be sold) to acquire any shares of capital stock of Person in accordance with the Company, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereofprocedures set forth in this Section 5.7; provided, however, provided that the foregoing provision Participation Rights shall not apply be applicable to any such Capital Stock the issuance of the CompanyCompany Securities: (i) issued as consideration pursuant to effect any merger, consolidation, recapitalization, or an acquisition of the stock, assets or acquisition business of another corporation Person by the Company or other entity; or any of its Subsidiaries, (ii) issued upon the exercise of warrants or options held by to directors, officers, directors employees or other employees individuals who are consultants pursuant to any Approved Stock Plan, (iii) pursuant to a stock split, stock dividend or similar transaction in which all holders of Common Stock are treated equally on a pro rata basis, (iv) pursuant to the payment of paid-in-kind interest on indebtedness for borrowed money incurred by the Company or warrants issued to Senior Lenders. In connection with the exercise any of options granted its Subsidiaries, (v) pursuant to the Company's employee stock option plans conversion, exchange or exercise of a Company Security that is either (A) outstanding on the Closing Date substantially in connection accordance with the terms in effect on the Closing Date or (B) outstanding after the Closing Date as long as, in the case of clause (B), the Investor Securityholders have had an opportunity to exercise of warrants issued their Participation Rights with respect to the Senior Lendersunderlying Company Security or such Company Security was issued pursuant to clause (i), the Holder shall have the option at any time (ii) or from time to time during the term (iv) of this Debenture sentence, and (vi) pursuant to purchase Shares at a price of $10 per share in order to maintain its percentage holdings an offering of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants type described to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) aboveof the definition of “Public Sale” of Company Securities. For purposes of clarity, the parties agree that the issuance of Conversion Shares upon conversion or exercise of the Securities or the 8% Notes shall not be subject to the Participation Rights.

Preemptive Rights. So long After the Effective Date, the Company will not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any Capital Stock or Options (collectively, the "Preemptive Securities"), unless the Company has first offered to sell to each holder of Class A Common Stock such Stockholder's Pro Rata Share (as this Debenture is outstanding defined below) of the Preemptive Securities, at a price and owned on such other terms as have been specified by the HolderCompany in writing delivered to each such Stockholder (the "Preemptive Offer"), which Preemptive Offer will be on terms substantially identical to the Holder shall have a preemptive right (that is, a right to purchase its pro rata share of all capital stock of the Company on a fully diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock terms of the Company's proposed issuance, based on its holdings at that date, on sale or exchange of Preemptive Securities and will remain open and irrevocable for a period of 20 Business Days from the same terms and conditions as those upon which such capital stock date it is proposed to be sold) to acquire any shares of capital stock of delivered by the Company, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock Company (collectively, the "Capital StockPreemptive Offer Period"). Notwithstanding the foregoing, authorized Preemptive Securities will not include (a) Options or other equity securities or rights issued pursuant to an Employee Plan approved by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply (subject to Section 3.4(b)(ii)) and any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors any such Options or other employees equity securities so long as such Options issued or the equity securities issuable upon exercise of such Options do not represent in excess of 10% of the Company fully diluted Common Stock, (b) the Lear Warrant or warrants any equity securities issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or terms of the Lear Warrant, (c) equity securities issued by the Company as direct consideration in connection with the exercise acquisition of warrants another business entity by the Company or a Subsidiary, whether by merger, purchase of all or substantially all of the assets of such entity or otherwise, (d) securities issued as a result of any split of, reclassification, subdivision of or other distribution pro rata with respect to, the equity securities of the Company, or (e) any equity securities issued in a Public Offering or pursuant to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term Reorganization. Each holder of this Debenture Class A Common Stock may elect to purchase Shares at (or to have its designated Affiliate that is also, or simultaneously with such purchase becomes, a price holder of $10 per share in order to maintain its percentage holdings Class A Common Stock, purchase) all or any portion of such Stockholder's Pro Rata Share of the capital stock Preemptive Securities as specified in the Preemptive Offer at the price and on the terms specified therein by delivering written notice of such election to the Company as soon as practicable but in any event before the expiration of the Preemptive Offer Period. Any Preemptive Securities not elected to be purchased by the end of the Preemptive Offer Period will be reoffered for a five-day period by the Company on a pro rata basis to the date hereof on a fully-diluted basis assuming the exercise holders of this Debenture and of all other outstanding options and warrants Class A Common Stock who have elected to purchase capital stock their full Pro Rata Share of the Company; provided that Preemptive Securities. In the $10 per share purchase price shall be subject event the holders of Class A Common Stock fail to adjustment exercise in full their preemptive rights as provided in Section 2.5 above; and provided further that set forth above with respect to the determination of the Holder's percentage holdings of the capital stock of Preemptive Securities, the Company shall be adjusted downward each time have 60 days thereafter to sell such Preemptive Securities, at a cash or cash equivalent price that is not less than the Holder fails to exercise its preemptive price specified in the Preemptive Offer. In the event the Company has not sold the Preemptive Securities within such 60-day period, the Company shall not thereafter issue or sell any Preemptive Securities without first complying with the first offer rights as provided set forth in this Section 4.9 3.2. Each Stockholder's "Pro Rata Share" of Preemptive Securities is the product of (x) the total number of Preemptive Securities and each time any (y) a fraction, the numerator of which is the total number of shares or units of capital stock are issued as described in clause (i) aboveClass A Common Stock then owned by such Stockholder and the denominator of which is the total number of shares or units of Class A Common Stock then outstanding.

Preemptive Rights. So long as this Debenture is outstanding and owned by 6.4.1. The Company hereby grants to each Capital Member the Holder, the Holder shall have a preemptive right (that is, a right to purchase its pro rata Pro Rata Share (disregarding any Incentive Plan Interests) of any New Senior Securities, as hereinafter defined (the “PR Purchase Right”), which the Company may, from time to time, propose to sell and issue. Except as set forth below, “New Senior Securities” shall mean Series B Preferred Interests or any other equity securities with a liquidation preference or dividend, redemption, or voting rights senior or on parity with Series B Preferred Interests as well as rights, options or warrants to purchase such equity securities, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for such equity securities. Notwithstanding the foregoing, “New Senior Securities” does not include: (i) securities offered to the public generally pursuant to a registration statement filed pursuant to the Securities Act, or pursuant to Regulation A under the Securities Act; (ii) securities issued pursuant to the acquisition of another person by the Company by a merger, share exchange, the purchase of substantially all capital stock of the assets of such other company, or other reorganization whereby the Company or its Members own not less than fifty-one percent (51%) of the voting power of the surviving or successor Person, so long as such acquisition is approved by the Board; (iii) the issuance of Options or Interests to employees of the Company, the Officers, Service Providers or members of the Board pursuant to the Option Plan, as currently in effect and as may from time to time be amended or any other equity incentive plan approved by the Board (including, if adopted following the date hereof, the affirmative approval of the Lead Series A Investor Manager and the Lead Series B Investor Manager), not to exceed, in the aggregate, twenty percent (20%) of the equity Interests of the Company on a fully diluted basis; (iv) securities issued pursuant to any convertible securities, options or warrants, provided that the PR Purchase Right under this Section 6.4 applies with respect to the initial issuance or grant of such convertible securities, options or warrants; (v) securities issued pursuant to the anti-dilution provisions of any outstanding option, warrant, right or convertible security of the Company issued after November 26, 2019; provided that the PR Purchase Right under this Section 6.4 applies with respect to the initial issuance of such option, warrant or convertible security, or provided that such securities issued pursuant to any option, warrant or convertible security otherwise do not constitute “New Senior Securities” for purposes of this Section 6.4 (as if such securities had been originally issued on the date such securities are issued pursuant to the anti-dilution provisions in the applicable option, warrant or convertible security for the same reason the applicable option, warrant or convertible security was originally issued), (vi) securities representing up to five percent (5%) of equity Interests of the Company on a fully diluted basis assuming at the exercise time of this Debenture and issuance that are issued in connection with arm’s length, reasonable commercial arrangements with any party who is not an Affiliate of all other outstanding options and warrants to purchase capital stock of the Companya Skybound Member, based on its holdings at that date, on the same terms and conditions so long as those upon which such capital stock commercial arrangement is proposed to be sold) to acquire any shares of capital stock of the Company, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized approved by the Board of Directors in good faith, and (vii) securities issued to any Person upon the waiver by the Board by unanimous consent of the Company for issuance after PR Purchase Right and the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided notice requirements set forth in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) above6.4.

Preemptive Rights. So long as this Debenture is outstanding If, at any time and owned by the Holderfrom time to time, the Holder shall have a preemptive right (that is, a right Company should desire to purchase its pro rata share of all capital stock of the Company on a fully diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire issue any shares of Common Stock, shares of Series A Preferred Stock or any other class of capital stock of the Company, including unissued whether or not now authorized, securities of any type that are convertible into shares of such capital stock or any options, warrants, debt instruments or rights or options to acquire shares of such capital stock (“New Securities”), it will give Generex and each Investor (collectively, the “Rights Holders”) the first right to purchase its “Proportionate Portion” of New Securities, determined by multiplying the total number of shares of New Securities available for purchase by a fraction, the numerator of which is the number of shares of Common Stock, including shares of Common Stock issuable upon conversion of the Series A Preferred Stock, held by such capital stockRights Holder, and the denominator of which is the number of shares of Common Stock actually issued and outstanding plus the number of shares of Common Stock issuable on the exercise, conversion or exchange of all then-exerciseable warrants, options, subscriptions, or purchase rights with respect to shares of Common Stock and any securities convertible into or exchangeable for shares of Common Stock or any exerciseable warrants, options, subscriptions, or purchase rights with respect to such capital convertible securities (including the number of shares of Common Stock issuable on the conversion of the outstanding shares of Series A Preferred Stock) on the same terms as the Company is willing to sell such New Securities to any other person or entity. “New Securities” will not include: (A) securities offered to the public pursuant to a registration statement under the Securities Act; (B) Common Stock, options or other rights to acquire shares of Common Stock (as adjusted for stock dividends, splits, combinations and the like with respect to the Common Stock) (collectively, "Capital Stock"and the issuance of shares of Common Stock upon exercise thereof), authorized issued pursuant to stock incentive plans or grants to officers, directors, employees and consultants approved by the Board of Directors of Board; (C) the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted Series A Preferred Shares pursuant to the Company's employee stock option plans Purchase Agreement and shares of Series A Preferred Shares and Common Stock issuable upon conversion or in connection with as dividends of such Preferred Shares; (D) the exercise of warrants issued common Stock issuable pursuant to the Senior LendersSPA, the Holder shall have the option at any time (E) Common Stock issued or from time issuable as a result of an adjustment pursuant to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings Section 4.3 of the capital stock Restated Certificate; and (F) Common Stock or securities convertible into or exercisable for Common Stock, if approved by the holder or holders of Generex and a majority of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued Series A Preferred Stock then outstanding, in each case as described in clause (i) abovesecurities excluded from the conversion price adjustment provisions provided for herein.

Preemptive Rights. (a) So long as the Conversant Parties Beneficially Own at least 14.9% of the outstanding shares of Common Stock on an as-converted basis, each Conversant Investor will have the preemptive rights set forth in this Debenture is outstanding and owned Section 5 with respect to any issuance of any Equity Securities that are issued after the date hereof (any such issuance, other than those described in clauses (i) through (vi) below, a “Preemptive Rights Issuance”), except for (i) issuances of any shares of Common Stock or options or rights to purchase such shares or other form of equity-based or equity-related awards (including restricted stock units) to employees (or prospective employees who have accepted an offer of employment), directors or consultants, or pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Holder, the Holder shall have a preemptive right (that is, a right to purchase Company or any of its pro rata share Subsidiaries or of all capital stock any employee agreements or arrangements or programs in effect as of the Company on a fully diluted basis assuming Closing Date (including the exercise New LTIP (as defined in the A&R Investment Agreement)), or thereafter adopted by the Board of this Debenture and Directors, (ii) issuances of all securities pursuant to any merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination or similar transaction or any other outstanding options and warrants to purchase capital stock of direct or indirect acquisition by the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock of whereby the Company’s securities comprise, including unissued shares in whole or any rights or options to purchase in part, the consideration paid by the Company in such capital stocktransaction, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized which transaction has been approved by the Board of Directors and, to the extent then applicable, approved by Investor A in accordance with Section 4, (iii) issuances of shares of Common Stock upon conversion or exercise of any of preferred stock, option or Derivative Instrument, in each case, outstanding as of the Company for issuance Closing Date or 2 To be updated to the extent the Closing does not occur in 2021. if issued after the date hereof; providedClosing Date, howeverwere either exempt from Investor A’s rights under this Section 5(a) or were offered to the Conversant Investors in accordance with this Section 5, that the foregoing provision shall not apply to any such Capital Stock (iv) by reason of the Company: (i) issued to effect any mergera dividend, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation stock split or other entity; or distribution of Common Stock, (iiv) issued upon the exercise issuances of warrants or options held by officers, directors or other employees any shares of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted Series A Preferred Stock pursuant to the Company's employee stock option plans or terms of the A&R Investment Agreement (including issuances of Common Stock upon conversation of such shares of Series A Preferred Stock in connection accordance with the exercise Certificate of warrants issued Designations), or (vi) issuances of any Equity Securities with respect to which Investor A waives in writing the Senior Lenders, the Holder shall have the option at any time or from time to time during the term rights of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings all of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants Conversant Investors pursuant to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) above5.

Preemptive Rights. So long as this Debenture is outstanding If, after the date hereof and owned prior to the conversion of the Convertible Preferred Stock by Preferred Stock Holders holding a majority of the HolderConvertible Preferred Stock, the Company shall propose to issue or sell New Securities (as hereinafter defined) or enter into any contracts, commitments, agreements, understandings or arrangements of any kind relating to the issuance or sale of any New Securities, each Preferred Stock Holder shall have a preemptive right (that is, a the right to purchase its pro rata share that number of all capital stock of New Securities at the Company on a fully diluted basis assuming the exercise of this Debenture same price and of all other outstanding options and warrants to purchase capital stock of the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares issued or sold by the Company so that such holder would after the issuance or sale of capital stock all of such New Securities, hold the same proportional interest of the Company, including unissued shares or any rights or options to purchase such capital stock, or then outstanding Shares (assuming that any securities or other rights convertible or exchangeable into or exercisable for Shares have been converted, exchanged or exercised) as was held by it prior to such capital stock issuance and sale (collectively, the "Capital StockProportionate Percentage"), authorized by the Board of Directors of the Company . "New Securities" shall mean any securities or other rights convertible or exchangeable into or exercisable for issuance after the date hereofShares; provided, however, that the foregoing provision shall "New Securities" does not apply to any such Capital Stock of the Companyinclude: (i) Common Stock issued to effect any merger, consolidation, recapitalization, or acquisition issuable on conversion of assets the Convertible Preferred Stock or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants options outstanding on the date hereof; (ii) Shares issued pursuant to any rights or agreements including, without limitation, any security convertible or exchangeable, with or without consideration, into or for any stock, options held and warrants, provided that the rights established by officers, directors this Section 6.1 apply with respect to the initial sale or other employees of grant by the Company of such rights or warrants agreements; (iii) securities issued to Senior Lenders. In connection with by the exercise Company as part of options granted any public offering pursuant to an effective registration statement under the Company's employee stock option plans or Securities Act; (iv) Shares issued in connection with the exercise of warrants issued to the Senior Lendersany stock split, the Holder shall have the option at any time stock dividend, recapitalization, spin-off, or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fullysplit-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock off of the Company; provided that (v) Shares issued to management, directors or employees of, or consultants to, the Company pursuant to plans outstanding as of the date hereof, and options to purchase Shares issued in accordance with such plans or pursuant to other plans approved by the Board and options to purchase Shares issued in accordance with such plans; (vi) securities issued in connection with any merger or acquisition by the Company; and (vii) securities issued in any single transaction in which (A) the purchase price for such securities is less than $10 1,000,000 and (B) such purchase price per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that of Common Stock or per Common Stock Equivalent is not less than the determination then applicable Conversion Price per share of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) above.the

Preemptive Rights. So long as this Debenture is outstanding (a) Subject to Section 4.40(g) below, from and owned by after the HolderClosing, the Holder each Purchaser shall have a preemptive right (that is, a the right to purchase exercise the preemptive rights set forth in this Section 4.40 (such Purchaser who exercises such right, an “Exercising Party”). If the Company, at any time following the Closing, intends to offer any of its pro rata share of all capital stock equity securities, including any security convertible into, or exercisable or exchangeable for, any equity security of the Company on (any such security, a fully diluted basis assuming “New Security”) (other than (i) a registered offering of Common Stock, (ii) pursuant to the granting or exercise of this Debenture compensatory stock options or other equity-based awards pursuant to the Company’s stock incentive plans in the ordinary course of equity compensation awards and any other compensatory stock options or equity-based awards that may be considered an “inducement grant” pursuant to NASDAQ Marketplace Rule 5635(c)(4), (iii) issuances of all other outstanding options and warrants securities to purchase capital stock holders of securities of acquired entities in connection with acquisition transactions, (iv) issuances of securities to holders of assets in connection with acquisition transactions, (v) issuances of shares of Common Stock issued upon conversion of, or as a dividend on, any convertible or exchangeable securities of the Company issued pursuant to the transactions contemplated hereby and (vi) distributions or issuances pursuant to the Company’s rights plan), based on its holdings at that date, the Exercising Party shall be afforded the opportunity to acquire from the Company a portion of such New Securities (the “Purchaser New Securities”) for the same price (net of any underwriting discounts or sales commissions) and on the same terms and conditions as those upon which such capital stock is proposed New Securities are sold to others, up to the amount specified in the following sentence. The amount of Purchaser New Securities that the Exercising Party shall be soldentitled to purchase in the aggregate shall be determined by multiplying (x) to acquire any the total number of such offered shares of capital stock New Securities by (y) a fraction, the numerator of which is the Company, including unissued number of shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Common Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof such Purchaser on a fully-diluted basis (assuming the conversion, exercise of this Debenture and or exchange of all “in-the-money” securities or other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any “in-the-money” interests convertible into, exercisable for or exchangeable for shares of capital stock are issued Common Stock) from either Conversion Shares or Warrant Shares, as described in clause of such date, and the denominator of which is the number of shares of Common Stock then outstanding on a fully-diluted basis (i) aboveassuming conversion, exercise or exchange of all “in-the-money” securities or other “in-the-money” interests convertible into, exercisable for or exchangeable for shares of Common Stock), as of such date (such fraction, a “Preemptive Rights Fraction”).

Preemptive Rights. So long as this Debenture is outstanding (a) If the Company shall propose to issue and owned by the Holdersell any Shares or any security convertible into or exchangeable for any Shares (other than any Shares to be issued (i) to Persons who are, the Holder shall have a preemptive right (that isor who are becoming, a right to purchase its pro rata share of all capital stock employees, managers, directors or consultants of the Company on or its Subsidiaries in connection with a fully diluted basis assuming the exercise of this Debenture and of all bona fide option or equity participation plan or other outstanding options and warrants to purchase capital stock of the Company, based on its holdings at bona fide compensation arrangement that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock of the Company, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized duly approved by the Board of Directors Managers (“Incentive Shares”), (ii) as part of a debt financing transaction or as consideration for an acquisition, a joint venture or joint venture partner duly approved by the Board of Managers, (iii) pursuant to conversion or exchange rights included in equity interests previously issued by the Company, (iv) in connection with an equity interests split, division or dividend duly approved by the Board of Managers, (v) pursuant to an Initial Public Offering or (vi) in connection with an issuance of Shares on account of the EDF Disputed Claim (as defined in the Order), on the terms and subject to the conditions set forth in the Order (collectively, the “New Securities”) or enter into any contracts relating to the issuance or sale of any New Securities to any Person (the “Subject Purchaser”), each Member who is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) and holds Shares (together with its Affiliates and Permitted Transferees) comprising at least an aggregate of 3% of all then outstanding Shares shall have the right (a “Preemptive Right”) to purchase such Member’s pro rata portion (based on ownership of Shares and determined without regard to Members not eligible for such Preemptive Right) of the New Securities at the same price and on the same other terms proposed to be issued and sold (excluding from such Member’s allocated portion an amount of Shares necessary to account for any options, warrants, SARs or other equity rights of Members if the holders of any such options, warrants, SARs or other equity rights are entitled to preemptive rights in any transaction to which this Section 9.8 applies, such that the number of New Securities to be purchased by Members pursuant to this Section 9.8 shall be reduced to permit such preemptive rights following the issuance of the New Securities to such holders upon exercise of their preemptive rights) (the “Proportionate Percentage”). The Company shall offer to sell to any such Member its Proportionate Percentage of such New Securities (the “Offered Securities”) and to sell to any such Member such of the Offered Securities as shall not have been subscribed for by the other Members as hereinafter provided, at the price and on the terms described above, which shall be specified by the Company in a written notice delivered to any such Member, which such notice shall also state (A) the number of New Securities proposed to be issued and (B) the portion of the New Securities available for purchase by such Member (the “Preemptive Offer”). The Preemptive Offer shall by its terms remain open for a period of at least thirty (30) days from the date of receipt thereof, or such shorter period of time as determined in good faith by the Board of Managers if in the best interests of the Company for issuance after (but in no event shall such period of time be less than five (5) Business Days) (the “Preemptive Offer Period”), and shall specify the date hereof; provided, however, that on which the foregoing provision Offered Securities will be sold to accepting Members (which date shall be not apply to any such Capital Stock less than five (5) days or more than sixty (60) days from the expiration of the Company: (i) issued Preemptive Offer Period). The failure of any Member to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant respond to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time Preemptive Offer during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price Preemptive Offer Period shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination deemed a waiver of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) abovesuch Members’ Preemptive Right.

Preemptive Rights. So long as this Debenture is outstanding In the absence of and owned by the Holderuntil a Qualified IPO, the Holder each holder of Preferred Stock shall have a preemptive the right (that is, a right of first refusal to purchase all or part of its pro rata share of all capital stock (equal to its percentage ownership of the Company on a fully diluted basis assuming basis) of New Securities (as defined below) that the exercise Company may, from time to time, propose to sell and issue, subject to the terms and conditions set forth below. "New Securities" shall mean any capital stock of this Debenture the Company whether now authorized or not, and of all other outstanding options and rights, options, or warrants to purchase capital stock stock, and securities of the Companyany type whatsoever that are, based on its holdings at that dateor may become, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock of the Company, including unissued shares or any rights or options to purchase such convertible into capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall term "New Securities" does not apply to any such Capital Stock of the Company: include (i) the Series C Preferred Stock or the Warrant issuable under this Agreement, the shares of Common Stock issuable upon conversion of the Series C Preferred Stock, the Series B Preferred Stock or the Senior Preferred Stock or the shares of Common Stock issuable upon exercise of the Warrant; (ii) securities issued pursuant to effect any merger, consolidation, recapitalization, an acquisition; (iii) options granted or acquisition of assets securities issued pursuant to an employee or acquisition of another corporation or other entitydirector stock option program; or (iiiv) securities issued as a result of any stock split, stock dividend, or reclassification of Common Stock, distributable on a pro rata basis to all holders of Common Stock. In the event the Company intends to issue New Securities, it shall give written notice to the holders of Preferred Stock ("Notice of Issuance") which shall set forth the purchase price and any other conditions of the issuance. Each holder of Preferred Stock shall have 30 days from the date of Notice of Issuance to agree to purchase all or part of its pro rata share of such New Securities for the price and upon the exercise general terms and conditions specified in the Notice of warrants or options held Issuance by officers, directors or other employees of giving written notice to the Company or warrants issued stating the quantity of New Securities to Senior Lendersbe so purchased. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder The Company shall have the option at any time or from time to time right during the term period expiring 150 days after the giving of this Debenture the Notice of Issuance to purchase Shares sell any or all of such New Securities not purchased by the holders of Preferred Stock at a price and upon general terms no more favorable to the purchasers than specified in the Notice of $10 per share in order to maintain its percentage holdings of Issuance. In the capital stock of event that the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of has not sold such New Securities within such 150 day period, the Company shall be adjusted downward each time not thereafter issue or sell any New Securities without first offering such New Securities to the Holder fails to exercise its preemptive rights as holders of Preferred Stock in the manner provided in this Section 4.9 11.9. Each of JG, Xxxxxxxx and each time Xxxxxx hereby waives its right to purchase any shares part of capital stock are issued as described in clause (i) abovethe Series C Preferred Stock and the Warrant being purchased hereunder by River Cities.

Preemptive Rights. So long (a) Prior to the consummation of an IPO, the Company shall give each of the Stockholders (other than the Avista Entities) that holds Common Stock that is an “accredited investor” (as this Debenture such term is outstanding and owned defined in Rule 501(a) of the Securities Act) as of the time of any proposed issuance by the Holder, the Holder shall have a preemptive right (that is, a right to purchase its pro rata share of all capital stock of the Company on a fully diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock of the Company, including unissued shares or any rights of its Subsidiaries of any equity or options to purchase such capital stock, or any debt securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued its Subsidiaries, including any Equity Securities (such securities, collectively, “Preemptive Securities;” and such Stockholders, “Participating Stockholders”), to Senior Lenders. In connection with any of the exercise Avista Funds any of options granted pursuant their respective Affiliates or any Avista Permitted Transferee (collectively, the “Avista Entities”), written notice (an “Issuance Notice”) of such proposed issuance at least ten (10) days prior to the Company's employee stock option plans or in connection with proposed issuance date. The Issuance Notice shall specify the exercise number and type of warrants Preemptive Securities and the price at which such Preemptive Securities are proposed to be issued to the Senior LendersAvista Entities and the other material terms and conditions of such issuance, including the proposed closing date. Subject to Section 5.04(g), each such Participating Stockholder shall be entitled to purchase, at the price and on the other terms and conditions specified in the Issuance Notice, all or a portion of its pro rata amount of such newly issued Preemptive Securities to the Avista Entities equal to (x) the number of such Preemptive Securities proposed to be issued to the Avista Entities by the Company, multiplied by (y) a fraction, the Holder numerator of which is the Aggregate Ownership of Common Stock of such Participating Stockholder and the denominator of which is equal to the Aggregate Ownership of the Common Stock of all Stockholders, provided that if the Avista Entities are purchasing a pro rata strip of Equity Securities and debt securities, each Participating Stockholder shall have the option at any time or from time to time during the term of this Debenture be required to purchase Shares at a price of $10 per share debt securities and Equity Securities in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) abovesame proportion.

Preemptive Rights. So long Prior to a Final Exit Event or an Initial Public Offering, if the Company proposes to issue additional Interests or securities convertible into or exercisable or exchangeable for Interests (other than (a) issuances of Management Incentive Units to Officers or other employees or consultants of the Company, its Subsidiaries or the Management Company (as approved in accordance with the terms of this Debenture is outstanding and owned Agreement) (b) issuances of Interests upon the consummation of Capital Calls or otherwise contemplated by this Agreement, (c) Interests issued by the HolderCompany as consideration in an acquisition of any other Person, business or assets (as approved in accordance with the terms of this Agreement), (d) Interests issuable upon the conversion, exercise or exchange of Interests, (e) Interests issued to satisfy any repurchase right or obligation of the Company related to the termination of any employee of the Company, its Subsidiaries or the Management Company or (f) Interests issued pursuant to the Additional Xxxxx Commitment), the Holder Company shall give written notice to the Common Unitholders who are not Defaulting Members setting forth the purchase price, rights and limitations of such additional Interests and the terms and conditions upon which they are proposed to be issued. Thereafter, each Common Unitholder who is not a Defaulting Member and is an accredited investor as defined in the Securities Act and certifies as such to the Company’s satisfaction (each, an “Eligible Investor”), shall have a the preemptive right (that is, a right to purchase acquire up to its pro rata share of all capital stock such additional Interests. The Eligible Investors may exercise such preemptive rights by purchasing, within 20 Business Days of receiving notice of the proposed issuance from the Company on a fully diluted basis assuming (the exercise of this Debenture and of all other outstanding options and warrants “Preemptive Rights Notice Period”), up to purchase capital stock their respective pro rata share of the Company, based on its holdings at that date, on additional Interests upon the same terms and conditions as those upon which such capital stock is proposed and for the purchase price set forth in the notice. If any Eligible Investor does not elect to be sold) to acquire any shares of capital stock purchase its full pro rata share of the Companyadditional Interests, including unissued shares or any rights or options those Eligible Investors who have elected to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors their full pro rata share of the additional Interests and who have notified the Company for issuance after within the date hereof; provided, however, Preemptive Rights Notice Period that the foregoing provision shall not apply they desire to any such Capital Stock purchase more than their full pro rata share of the Company: (i) issued to effect additional Interests may purchase their respective pro rata share of any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees remaining balance of the Company or warrants issued to Senior Lendersadditional Interests. In connection with After the exercise expiration of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior LendersPreemptive Rights Notice Period, the Holder Company shall have the option at any time or from time power to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings sell all of the capital stock additional Interests that have not been purchased to one or more third parties, but only upon the terms and conditions and for the purchase price set forth in the notice or upon more economically favorable terms to the Company and the existing Members and provided that, if such sale is not consummated on or before 120 days after the expiration of the Preemptive Rights Notice Period, the Company must comply again with the procedures set forth in this Section 3.3. In each case, the phrase “pro rata share” as used in this Section 3.3 shall mean such Eligible Investor’s pro rata share based on the date hereof on a fullyEligible Investor’s respective Fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise Funded Percentage Interest. Each Member hereby irrevocably waives its preemptive rights as provided in this under Section 4.9 3.3 of the First Amended and each time Restated Agreement with respect to the Capital Contribution made by Xxxxxxx and the issuance of any shares of capital stock are issued as described in clause (i) aboveCommon Units related thereto.

Preemptive Rights. So long as this Debenture is outstanding and owned by (a) The Company hereby grants to each Shareholder, for a period of two (2) years from the Holderdate hereof, the Holder shall have a preemptive right (that isto purchase, on a right to purchase its pro rata share basis and at the same price and upon the same terms as any other investors at such time, all or any part of any New Securities (as defined below) which the Company may, from time to time, propose to sell and issue subject to the terms and conditions set forth below. A Shareholder's pro rata share, for purposes of this subsection (a), shall equal a fraction, the numerator of which is the number of shares of Common Stock then held by such Shareholder on a fully-diluted basis, and the denominator of which is the total number of shares of Shares then held by all of the Shareholders on a fully-diluted basis. (b) "New Securities" shall mean any capital stock of the Company on a fully diluted basis assuming the exercise of this Debenture --------------- whether now authorized or not and of all other outstanding rights, options and or warrants to purchase capital stock stock, and securities of any type whatsoever which are, or may become, convertible into capital stock; provided, however, that the term "New Securities" shall expressly not include (i) securities offered to the public pursuant to a Public Offering; (ii) securities issued for the acquisition of another corporation by the Company by merger, purchase of substantially all the assets of such corporation or other reorganization resulting in the ownership by the Company of not less than 51% of the Company, based on its holdings at that date, on the same terms and conditions as those upon which voting power of such capital stock is proposed corporation; (iii) Common Stock issued to be sold) to acquire any shares of capital stock employees or consultants of the CompanyCompany pursuant to a stock option plan, including unissued shares employee stock purchase plan, restricted stock plan or any rights other employee stock plan or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized agreement approved by the Board of Directors of the Company for issuance after the date hereof; provided, however, (provided that the foregoing provision shall total number of shares to be issued under all such plans does not apply to any such Capital Stock exceed 10% of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition 's shares outstanding as of assets or acquisition the date of another corporation or other entitythis Agreement); or (iiiv) securities issued upon the exercise as a result of warrants any stock split, stock dividend or options held by officersreclassification of Common Stock, directors or other employees distributable on a pro rata basis to all holders of Common Stock. (c) If the Company or warrants issued intends to Senior Lenders. In connection with issue New Securities, it shall give each Shareholder ten (10) days written notice of such intention, describing the exercise type of options granted pursuant New Securities to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lendersbe issued, the Holder price thereof and the general terms upon which the Company proposes to effect such issuance. Each Shareholder shall have thirty (30) days (the option at any time or "Exercise Period") from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants any such notice to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails agree to exercise its preemptive rights as right by giving written notice to the Company stating the quantity of New Securities to be so purchased. Each Shareholder shall have a right of overallotment such that if any Shareholder fails to exercise his or its preemptive right hereunder, the other Shareholders may purchase such portion on a pro rata basis, by giving written notice to the Company within ten (10) days from the date that the Company provides written notice to the other Shareholders of the amount of New Securities with respect to which such nonpurchasing Shareholder has failed to exercise its or his right hereunder. [ ] { }(d) If any Shareholder or Shareholders fail to exercise the foregoing preemptive right with respect to any New Securities within the Exercise Period (or the additional ten day period provided for overallotments), the Company may thereafter sell any or all of such New Securities not agreed to be purchased by the Shareholders, at a price and upon general terms no more favorable to the purchasers thereof than specified in this Section 4.9 and the notice given to each time any shares of capital stock are issued as described in clause Shareholder pursuant to paragraph (ic) above. In the event the Company has not sold such New Securities within a ninety (90) day period following expiration of the Exercise Period, the Company shall not thereafter issue or sell any New Securities without first offering such New Securities to the Shareholders in the manner provided above.

Preemptive Rights. So long as this Debenture is outstanding and owned by the Holder, the Holder shall Holders of our Series A Preferred Stock have a preemptive right (that is, a right rights to purchase its a pro rata share portion of all capital stock or securities convertible into capital stock that we issue, sell or exchange, or agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange. We must deliver each holder of our Series A Preferred Stock a written notice of any proposed or intended issuance, sale or exchange of capital stock or securities convertible into capital stock which must include a description of the Company on securities and the price and other terms upon which they are to be issued, sold or exchanged together with the identity of the persons or entities (if known) to which or with which the securities are to be issued, sold or exchanged, and an offer to issue and sell to or exchange with the holder of the Series A Preferred Stock the holder’s pro rata portion of the securities, and any additional amount of the securities should the other holders of Series A Preferred Stock subscribe for less than the full amounts for which they are entitled to subscribe. In the case of a fully diluted basis assuming public offering of our common stock for a purchase price of at least $12.00 per share and a total gross offering price of at least $50 million, the exercise preemptive rights of the holders of the Series A Preferred Stock shall be limited to 50% of the securities. Holders of our Series A Preferred Stock have a 30 day period during which to accept the offer. We will have 90 days from the expiration of this Debenture and of 30 day period to issue, sell or exchange all other outstanding options and warrants to purchase capital stock or any part of the Companysecurities as to which the offer has not been accepted by the holders of the Series A Preferred Stock, based on its holdings at that date, on but only as to the same offerees or purchasers described in the offer and only upon the terms and conditions as that are not more favorable, in the aggregate, to the offerees or purchasers or less favorable to us than those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock contained in the offer. The preemptive rights of the Companyholders of the Series A Preferred Stock do not apply to any of the following securities: (i) securities issued to our employees, including unissued shares officers or any rights directors or options to purchase such capital stockcommon stock granted by us to our employees, officers or directors under any securities convertible into such capital stock (collectivelyoption plan, "Capital Stock"), authorized agreement or other arrangement duly adopted by us and the grant of which is approved by the Board compensation committee of Directors our Board; (ii) the Series A Preferred Stock and any common stock issued upon conversion of the Company for issuance after Series A Preferred Stock; (iii) securities issued on the conversion of any convertible securities, in each case, outstanding on the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: filing of the Series A Certificate of Designations; (iiv) securities issued to effect any in connection with a stock split, stock dividend, combination, reorganization, recapitalization or other similar event for which adjustment is made in accordance with the Series A Certificate of Designations; and (v) the issuance of our securities issued for consideration other than cash as a result of a merger, consolidation, recapitalizationacquisition or similar business combination by us approved by our Board. Anti-Takeover Effects of Delaware Law and Our Certificate of Incorporation and Bylaws A number of provisions of Delaware law, our certificate of incorporation and our bylaws contain provisions that could have the effect of delaying, deferring and discouraging another party from acquiring control of Pacific Ethanol. These provisions, which are summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of Pacific Ethanol to first negotiate with our Board. We believe that the benefits of increased protection of our potential ability to negotiate with an unfriendly or acquisition unsolicited acquiror outweigh the disadvantages of assets or acquisition discouraging a proposal to acquire Pacific Ethanol because negotiation of another corporation or other entity; or (ii) issued upon the exercise these proposals could result in an improvement of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenderstheir terms. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior LendersHowever, the Holder shall have existence of these provisions also could limit the option at any time or from time price that investors might be willing to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) abovepay for our securities.

Preemptive Rights. So long as this Debenture is outstanding (i) Prior to a Qualified Public Offering, and owned by the Holder, the Holder shall have a preemptive right except for issuances of Common Stock (that is, a right to purchase its pro rata share of all capital stock of the Company on a fully diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock of the Company, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock acquire Common Stock) (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply a) to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants any Subsidiary on terms which have been approved (or are issued pursuant to Senior Lenders. In connection with an employee plan that has been approved) by the Company's Board of Directors, (b) upon the conversion of the Series A, B. C or D Preferred or the exercise of options granted pursuant to the Company's employee stock option plans or Warrant, (c) in connection with the exercise acquisition of warrants issued another company or business as permitted under subparagraph 3D(viii), (d) pursuant to a public offering registered under the Senior LendersSecurities Act, and (e) pursuant to options and rights to acquire Common Stock that are described on the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of Capitalization Schedule attached hereto, if the Company authorizes the issuance or sale of any equity securities or any options or rights (or securities containing options or rights) to acquire any equity securities (other than as a dividend on the date hereof on a fully-diluted basis assuming the exercise outstanding Common Stock payable solely in shares of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of Common Stock), the Company shall be adjusted downward each time the Holder fails first offer to exercise its preemptive rights sell to Purchaser (so long as provided in this Section 4.9 Purchaser owns any Underlying Common Stock and each time any holder of at least 200,000 shares of capital Underlying Common Stock (as adjusted to account for stock splits, stock dividends, combinations of shares and similar events) a portion of such stock or securities equal to the quotient determined by dividing (1) the number of shares of Underlying Common Stock held by such holder by (2) the sum of (x) the number of shares of Underlying Common Stock then in existence and (y) the number of shares of Common Stock then outstanding or issuable upon the outstanding rights, warrants, options or convertible securities which are issued fully exercisable at such time at an exercise or conversion price which does not exceed the fair market value of the Common Stock issuable thereupon as described determined in clause good faith by the Company's Board of Directors, and which are not shares of Underlying Common Stock. Each such holder of Underlying Common Stock shall be entitled to purchase such stock or securities at the most favorable price and on the most favorable terms that such stock or securities are to be offered to any other Persons. The purchase price for all stock and securities offered to the holders of the Underlying Common Stock shall be payable in cash (i) aboveor such other terms as are offered to other Persons).

Preemptive Rights. So long Except for Excluded Shares (as this Debenture is outstanding and owned by the Holderdefined below), the Holder Company shall have a preemptive right not, for cash, issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (that isi) any shares of its Common Stock, a (ii) any other equity securities of the Company, including, without limitation, shares of Preferred Stock, (iii) any option, warrant or other right to subscribe for, purchase its pro rata share or otherwise acquire any equity securities of all the Company, or (iv) any debt securities convertible into capital stock of the Company (collectively, the “Offered Securities”), unless in each such case the Company first delivers to the Lender a written notice of any proposed or intended issuance, sale or exchange of Offered Securities (the “Offer”), which Offer shall (i) identify and describe the Offered Securities, (ii) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (iii) identify the persons or entities to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (iv) offer to issue and sell to or exchange with the Lender such portion of the Offered Securities as the aggregate number of shares of Common Stock then held by the Lender pursuant to this Agreement (on a fully diluted an as-converted basis assuming the conversion of the Loan Amount on the Note and the exercise of outstanding Warrants) bears to the total number of shares of Common Stock outstanding on an as-converted basis. The Lender shall have the right, for a period of 20 days following delivery of the Offer, to purchase or acquire, at a price and upon the other terms specified in the Offer, the number or amount of Offered Securities described above. The Offer by its term shall remain open for such 20-day period. For purposes of this Debenture and Agreement, “Excluded Shares” shall include securities of the Company issued pursuant to (A) a stock option plan (or similar equity incentive plan) to employees, consultants or directors for the primary purposes of soliciting or retaining services, (B) a conversion or exercise of derivative securities, (C) a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of all other outstanding options and warrants to purchase capital stock or substantially all of the assets of the Company or a third party, (D) a financing of the Company whereby the Company receives gross proceeds of $2,000,000 or more, (E) a public offering of securities of the Company, based on its holdings at and (F) that datecertain Amended and Restated Loan and Security Agreement dated November 1, on 2005, by and between the same terms Company and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock of Pacific Xxxx Capital, LLC and transactions related thereto. Notwithstanding the Companyforegoing, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by in the event the Board of Directors of the Company for issuance after the date hereof; provideddetermines, howeverin its good faith and reasonable discretion, that the foregoing provision Company is unable to obtain available financing necessary to the Company due to its obligation to provide the Lender the rights referenced in this Section 4.3, the Company is entitled to obtain such financing and shall not apply use its best efforts to any such Capital Stock of offer the Company: (i) issued Lender the opportunity to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees purchase like-securities of the Company or warrants issued at terms similar to Senior Lenders. In connection with the exercise of options granted pursuant those provided to the Company's employee stock option plans or third-party investors in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) abovesuch financing arrangement.

Preemptive Rights. So long (a) In the event that the Company intends to issue for cash consideration additional shares (the "Additional Shares") of Common Stock or Class A Common Stock (whether directly, or through the exercise of any options, warrants or rights to acquire Common Stock or Class A Common Stock (except with respect to the issuance of Common Stock relative to any options, warrants or rights set forth on Schedule 2.4 of the Series D Purchase Agreement)), or, ------------ except as this Debenture is outstanding in respect to the conversion of the Series B Preferred Stock, Series C Preferred Stock or the Series D Preferred Stock, to one or more third persons or entities (collectively, the "New Stockholders"), prior to said issuance of Additional Shares, each Series B Preferred Stockholder, Series C Preferred Stockholder and owned Series D Stockholder shall have the right to subscribe, at the price which the Additional Shares are intended to be issued by the HolderCompany, for all or any portion of such Series B Preferred Stockholder's, Series C Preferred Stockholder's and Series D Stockholder's pro rata portion of the Additional Shares based upon the percentage ownership of Common Stock or Class A Common Stock issued or issuable to each Series B Preferred Stockholder, Series C Preferred Stockholder and Series D Preferred Stockholder relative to all shares of Common Stock and Class A Common Stock issued or issuable to all Series B Preferred Stockholders, Series C Preferred Stockholders and Series D Preferred Stockholders (collectively the "Preferred Stockholders Preemptive Pro Rata Share"). Accordingly, whenever it proposes to issue Additional Shares which are subject to the preemptive rights herein, the Holder Company shall give written notice thereof (the "Additional Shares Sales Notice") to each Series B Preferred Stockholder, Series C Preferred Stockholder and Series D Preferred Stockholder at least ten (10) days prior to the date of the proposed issuance of such Additional Shares (the "Proposed Issuance Date"). Such notice shall describe the Additional Shares to be issued, the Proposed Issuance Date and the other material terms and conditions of such proposed issuance, and the identity of the proposed purchaser(s) thereof. Each Series B Preferred Stockholder, Series C Preferred Stockholder and Series D Preferred Stockholder shall have a preemptive right ten (10) days from the date of such notice to give written notice to Company whether it elects to purchase some or all of its Preferred Stockholder's Preemptive Pro Rata Share of such Additional Shares, and if it gives such notice, it shall pay for such Additional Shares simultaneously with the purchase of the Additional Shares by all of the Series B Preferred Stockholders, Series C Preferred Stockholders and Series D Preferred Stockholders. In the event that isany Series B Preferred Stockholder, a right any Series C Preferred Stockholder or any Series D Preferred Stockholder does not advise the Company that it wishes to purchase its entire Preferred Stockholder's Preemptive Pro Rata Share of Additional Shares within such ten (10) day period, the Company shall, within twenty-four hours, notify the other Series B Preferred Stockholders, Series C Preferred Stockholders and Series D Preferred Stockholders, who have chosen to purchase their entire pro rata share of all capital stock portion of the Company Additional Shares and such unpurchased --- ---- Additional Shares shall be available for purchase by such other Series B Preferred Stockholders, Series C Preferred Stockholders and Series D Preferred Stockholders, on a fully diluted basis assuming pro rata basis, or some other basis, as they may determine --- ---- for five (5) days thereafter. To the exercise of this Debenture and of extent that all other outstanding options and warrants to purchase capital stock of the CompanyAdditional Shares are not subscribed for within such five (5) day period, based on its holdings at then the Series B Preferred Stockholders, the Series C Preferred Stockholders and the Series D Preferred Stockholders agree that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock of the Company, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time absolute right to sell all or from time to time during the term less than all of this Debenture to purchase those Additional Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company that have not been subscribed for on the date hereof on a fully-diluted basis assuming terms set forth in the exercise Additional Shares Sales Notice to one or more third persons or entities for sixty (60) days thereafter, after which time any further proposed issuances of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price Additional Shares shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination provisions of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) above3(a).

Preemptive Rights. So long as (a) Subject to applicable securities laws and the provisions of this Debenture is outstanding Section 9.3, until the earliest of (i) the Initial Public Offering or (ii) November 4, 2022, if and owned by whenever the HolderCompany shall offer, the Holder shall have a preemptive right (that isissue or sell shares of Parity Stock or Senior Stock, a right or any rights, options or warrants to purchase its pro rata share any such Parity Stock or Senior Stock or notes or other securities of all any type whatsoever convertible into or exchangeable for any such Parity Stock or Senior Stock (other than as a dividend or other distribution on the Series A Preferred Stock or other Preferred Stock, Common Stock or other capital stock of the Company on or unless otherwise consented to or waived by the Majority Purchasers) (the “New Securities”), each holder of Series A Preferred Stock shall be entitled to purchase a fully diluted basis assuming portion of the exercise New Securities as hereinafter provided before the Company may issue the New Securities to any other Persons (“Preemptive Rights”). Each holder of this Debenture Series A Preferred Stock shall be entitled to purchase up to that number of the New Securities with an aggregate offering or purchase price (or, if applicable, stated value or liquidation preference) equal to the aggregate liquidation preference (as may be adjusted for stock splits, recapitalizations, combinations, reclassifications and similar events which affect the Series A Preferred Stock) of all other shares of the Series A Preferred Stock then held by the Purchaser. If any offering of the New Securities is for an aggregate offering or purchase price (or, if applicable, stated value or liquidation preference) in an amount less than the then-applicable aggregate liquidation preference of the outstanding options shares of Series A Preferred Stock, then the Preemptive Rights of the Purchaser to subscribe for and warrants purchase any New Securities shall be allocated pro rata based upon the ratio that the aggregate liquidation preference (as may be adjusted for stock splits, recapitalizations, combinations, reclassifications and similar events which affect the Series A Preferred Stock) of all shares of the Series A Preferred Stock then held by the Purchaser bears to the aggregate liquidation preference (as may be adjusted for stock splits, recapitalizations, combinations, reclassifications and similar events which affect the Series A Preferred Stock) of all shares of the Series A Preferred Stock then outstanding. The per share liquidation preference initially stated in the Charter for the Series A Preferred Stock is $1,000.00. For illustrative purposes only, if a Purchaser holds five (5) shares of Series A Preferred Stock at the time of an offering of the New Securities and no adjustments have been made to the liquidation preference of the Series A Preferred Stock since the date of the Closing, then such Purchaser would be entitled to purchase capital stock of the CompanyNew Securities with an aggregate offering or purchase price (or, based on its holdings at that dateif applicable, on the same terms and conditions as those upon which such capital stock is proposed to be soldstated value or liquidation preference) to acquire any shares of capital stock of the Company, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) above5,000.00.

Preemptive Rights. So long as 6.4.1 Subject to SECTION 6.4.2 and to the terms and condition of this Debenture is outstanding and owned by the HolderSECTION 6.4.1, the Holder TVG shall have a preemptive right (that is, a the right to purchase its pro rata share subscribe to any additional (i) issuances of all shares of capital stock of CTS occurring on or after the Company on a fully diluted basis assuming the exercise date hereof, (ii) issuances of this Debenture and securities convertible into shares of all other outstanding options and warrants to purchase capital stock of CTS occurring on or after the Companydate hereof, based or (iii) grants of options to purchase shares of capital stock of CTS, other than grants to employees, directors or consultants of CTS (and the issuance of shares upon exercise of such options), for cash occurring on its holdings at that dateor after the date hereof, on the same terms and conditions as those upon of such offerings to the extent equal to the proportion which such capital stock is proposed to be sold) to acquire any the total shares of capital stock Stock then held by TVG bears to CTS's fully-diluted capitalization (on an as-converted and as-exercised basis). Such right is exercisable within ten (10) days after the receipt by TVG of written notice relating to such issuance. Such right extends to the same proportion of the Companynew issue of shares, including unissued convertible securities or options as TVG's proportion of CTS's fully-diluted capitalization. Notwithstanding the foregoing, TVG's right to purchase new issues of shares or any rights convertible securities or options does not extend to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalizationthe issuance of shares upon the conversion or exercise of options or other convertible securities either (A) outstanding on the Closing Date, or acquisition of assets or acquisition of another corporation (B) with respect to which options or other entityconvertible securities TVG had preemptive rights under this SECTION 6.4.1; or (ii) securities issued upon the exercise of warrants solely in exchange for shares, convertible securities or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lendersany merger, the Holder shall have the option at any time reorganization or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its acquisition. The preemptive rights as provided in held by TVG pursuant to this Section 4.9 6.4 shall terminate and each time any shares be of capital stock are issued as described in clause no further force or effect upon the first to occur of (i) abovethe termination of this Agreement pursuant to SECTION 9.18 hereof; or (ii) immediately prior to the listing of shares of the common stock of CTS on a securities exchange or qualification of such shares for trading on an over-the-counter system selected by CTS.

Preemptive Rights. So (a) From the Closing, for so long as this Debenture is outstanding Company Parent (together with its Affiliates) Beneficially Owns any Acquiror Securities, if Acquiror proposes to issue any New Securities, other than in an Excluded Issuance, then Acquiror shall (i) give written notice to Company Parent (no less than 15 Business Days prior to the closing of such issuance) of Acquiror’s bona fide intention to offer such New Securities (the “Proposed Securities”), setting forth in reasonable detail the designation and owned by the Holder, the Holder shall have a preemptive right (that is, a right to purchase its pro rata share summary of all capital stock of the Company on a fully diluted basis assuming the exercise of this Debenture terms and of all other outstanding options and warrants to purchase capital stock provisions of the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is New Securities proposed to be sold) issued, including the price, the amount of such securities proposed to acquire be issued and, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights and the qualification, limitations or restrictions thereof and any shares of capital stock other terms of the Companyproposed sale of such securities; provided that following the delivery of such notice, including unissued shares or any rights or options Acquiror shall deliver to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to Parent any such Capital Stock of information Company Parent may reasonably request in order to evaluate the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entityproposed issuance; or and (ii) offer to issue and sell to Company Parent, on such terms as the Proposed Securities are issued and upon full payment by Company Parent of the price for such New Securities, a portion of the Proposed Securities equal to a percentage determined by dividing (A) the number of shares of Acquiror Common Stock Company Parent Beneficially Owns (on an as converted basis, assuming full conversion and/or exercise of warrants all equity-based securities of Acquiror then outstanding, whether vested, unvested or options held then convertible or exercisable) by officers(B) the total number of shares of Acquiror Common Stock then outstanding (on an as-converted basis, directors assuming full conversion and/or exercise of all equity-based securities of Acquiror then outstanding, whether vested, unvested or other employees of then convertible or exercisable) (such percentage, the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) aboveParent’s “Participation Portion”).

Preemptive Rights. So long Except for issuances of: (A) Equity Securities issued in connection with debt financings, debt refinancings, debt restructurings or similar transactions, (B) Equity Securities issued in connection with strategic transactions involving the Company or any of its Subsidiaries and other Persons (including Equity Securities issued in connection with joint ventures and similar arrangements or as this Debenture consideration in connection with an acquisition transaction) the primary purpose of which is outstanding and owned by other than for capital raising purposes, (C) Equity Securities issued upon exercise or conversion of any Warrants, or other Equity Securities which were issued in compliance with the Holderterms hereof, (D) Equity Securities issued to officers, directors, consultants, employees or other service providers (including the Holder shall have a preemptive right (that is, a right to purchase its pro rata share of all capital stock EIK Manager) of the Company on a fully diluted basis assuming or any of its Subsidiaries pursuant to the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock Management Agreement or any incentive or compensation plans, (E) Units issued in connection with any Unit split, Unit dividend or recapitalization of the Company, based if the Company authorizes the issuance or sale of any Equity Securities, the Company shall offer to sell to each Member (other than Excluded Members) a portion of such securities such that such Member’s Percentage Interest immediately prior to such issuance or sale would be the same as its Percentage Interest immediately after such issuance or sale or (F) up to $125,000 in preferred Equity Securities issued to the Investor to facilitate the admission of accommodation preferred holders at the Investor; provided, that no Member who solely owns Profit Units or is entitled to purchase less than $10,000 of such securities after determination of such Member’s Percentage Interest (an “Excluded Member”) shall have any rights under this Section 3.4.6. Each such Member shall be entitled to purchase such securities at the most favorable price and on its holdings at the most favorable terms as such securities are to be offered to any other Persons; provided, that dateif all Persons entitled to purchase or receive such securities are required to also purchase other securities of the Company, the holders exercising their rights pursuant to this Section 3.4.6 shall also be required to purchase the same strip of securities (on the same terms and conditions as those upon which conditions) that such capital stock is proposed other Persons are required to purchase. The purchase price for all Equity Securities offered to such holders hereunder shall be soldpayable in cash. Notwithstanding anything to the contrary contained herein, the rights of any Member pursuant to this Section 3.4.6 shall be deemed satisfied if the Company provides (or causes to provide) each Member entitled to acquire any shares of capital stock of such rights the Company, including unissued shares or any rights or options right to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of from the Company or warrants issued any Person within thirty (30) days after the issuance giving rise to Senior Lenders. In connection with such right (or, in the exercise case of options granted pursuant to any issuances contemplated by Section 3.4.1(c), thirty (30) days after the Company's employee stock option plans or in connection with the exercise final determination of warrants issued to the Senior LendersFair Market Value), the Holder shall have same amount of Equity Securities that such Member had the option at any time or from time to time during the term of this Debenture right to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in under this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) above3.4.6.

Preemptive Rights. So long Except for issuances of (A) Equity Securities issued in connection with debt financings, debt refinancings, debt restructurings or similar transactions, (B) Equity Securities issued in connection with strategic transactions involving the Company or any of its Subsidiaries and other Persons (including Equity Securities issued in connection with joint ventures and similar arrangements or as this Debenture consideration in connection with an acquisition transaction) the primary purpose of which is outstanding and owned by other than for capital raising purposes, (C) Equity Securities issued upon exercise or conversion of any Warrants, or other Equity Securities which were issued in compliance with the Holderterms hereof, (D) Equity Securities issued to officers, directors, consultants, employees or other service providers (including the Holder shall have a preemptive right (that is, a right to purchase its pro rata share of all capital stock EIK Manager) of the Company on or any of its Subsidiaries pursuant to the Management Agreement or any incentive or compensation plans, (E) Units issued in connection with any Unit split, Unit dividend or recapitalization of the Company or (F) up to $125,000 in preferred Equity Securities issued to the Investor to facilitate the admission of accommodation preferred holders at the Investor, if the Company authorizes the issuance or sale of any Equity Securities, the Company shall offer to sell to each Member (other than Excluded Members) a fully diluted basis assuming portion of such securities such that such Member’s Percentage Interest immediately prior to such issuance or sale would be the exercise of this Debenture and of all other outstanding options and warrants same as its Percentage Interest immediately after such issuance or sale; provided, that no Member who solely owns Profit Units or is entitled to purchase capital stock less than $10,000 of such securities after determination of such Member’s Percentage Interest (an “Excluded Member”) shall have any rights under this Section 3.4.6. Each such Member shall be entitled to purchase such securities at the most favorable price and on the most favorable terms as such securities are to be offered to any other Persons; provided, that if all Persons entitled to purchase or receive such securities are required to also purchase other securities of the Company, based on its holdings at that date, the holders exercising their rights pursuant to this Section 3.4.6 shall also be required to purchase the same strip of securities (on the same terms and conditions as those upon which conditions) that such capital stock is proposed other Persons are required to purchase. The purchase price for all Equity Securities offered to such holders hereunder shall be soldpayable in cash. Notwithstanding anything to the contrary contained herein, the rights of any Member pursuant to this Section 3.4.6 shall be deemed satisfied if the Company provides (or causes to provide) each Member entitled to acquire any shares of capital stock of such rights the Company, including unissued shares or any rights or options right to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of from the Company or warrants issued any Person within thirty (30) days after the issuance giving rise to Senior Lenders. In connection with such right (or, in the exercise case of options granted pursuant to any issuances contemplated by Section 3.4.1(c), thirty (30) days after the Company's employee stock option plans or in connection with the exercise final determination of warrants issued to the Senior LendersFair Market Value), the Holder shall have same amount of Equity Securities that such Member had the option at any time or from time to time during the term of this Debenture right to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in under this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) above3.4.6.

Preemptive Rights. So long as this Debenture is outstanding If, after the date hereof and owned prior to the ----------------- conversion of the Convertible Preferred Stock by Preferred Stock Holders holding a majority of the HolderConvertible Preferred Stock, the Company shall propose to issue or sell New Securities (as hereinafter defined) or enter into any contracts, commitments, agreements, understandings or arrangements of any kind relating to the issuance or sale of any New Securities, each Preferred Stock Holder shall have a preemptive right (that is, a the right to purchase its pro rata share that number of all capital stock of New Securities at the Company on a fully diluted basis assuming the exercise of this Debenture same price and of all other outstanding options and warrants to purchase capital stock of the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares issued or sold by the Company so that such holder would after the issuance or sale of capital stock all of such New Securities, hold the same proportional interest of the Company, including unissued shares or any rights or options to purchase such capital stock, or then outstanding Shares (assuming that any securities or other rights convertible or exchangeable into or exercisable for Shares have been converted, exchanged or exercised) as was held by it prior to such capital stock issuance and sale (collectively, the "Capital StockProportionate Percentage"), authorized by the Board of Directors of the Company . "New ------------------------ --- Securities" shall mean any securities or other rights convertible or ---------- exchangeable into or exercisable for issuance after the date hereofShares; provided, however, that the foregoing provision shall "New -------- ------- Securities" does not apply to any such Capital Stock of the Companyinclude: (i) Common Stock issued to effect any merger, consolidation, recapitalization, or acquisition issuable on conversion of assets the Convertible Preferred Stock or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants options outstanding on the date hereof; (ii) Shares issued pursuant to any rights or agreements including, without limitation, any security convertible or exchangeable, with or without consideration, into or for any stock, options held and warrants, provided that the rights established by officers, directors this Section 6.1 apply with respect to the initial sale or other employees of grant by the Company of such rights or warrants agreements; (iii) securities issued to Senior Lenders. In connection with by the exercise Company as part of options granted any public offering pursuant to an effective registration statement under the Company's employee stock option plans or Securities Act; (iv) Shares issued in connection with the exercise of warrants issued to the Senior Lendersany stock split, the Holder shall have the option at any time stock dividend, recapitalization, spin-off, or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fullysplit-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock off of the Company; provided that (v) Shares issued to management, directors or employees of, or consultants to, the $10 per share purchase price shall be subject Company pursuant to adjustment plans outstanding as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails date hereof, and options to exercise its preemptive rights as provided purchase Shares issued in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) above.accordance with such plans or pursuant to other

Preemptive Rights. So (a) In the event of any offering of New Securities (as defined below) by the Company, each Investor, commencing on the earlier of (1) the termination of the Merger Agreement and (2) the date that is 180 days after the Closing Date and for so long as this Debenture is outstanding and owned by the HolderNotes or any Note Shares remain outstanding, the Holder shall have a preemptive right (that is, a the right to purchase its pro rata share a percentage of all capital stock the New Securities being offered that is equal to the percentage of the outstanding Common Stock of the Company owned by such Investor on a fully diluted an as-converted basis assuming (treating for this purpose as outstanding all shares of Common Stock issuable upon the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock full conversion of the CompanyNotes then outstanding); provided, based on its holdings at however, that datethis right shall not apply to (i) equity compensation grants to employees, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock of the Company, including unissued shares or any rights or options to purchase such capital stockconsultants, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized directors pursuant to plans or other arrangements approved by the Board of Directors of the Company for issuance after the date hereof; providedCompany, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) securities issued upon the conversion or exercise of warrants any convertible or options held by officers, directors or other employees exercisable securities that are outstanding as of the Company or warrants issued to Senior Lenders. In connection with date hereof on the exercise terms in effect on such date, (iii) the issuance of options granted pursuant to the Company's employee stock option plans or securities in connection with any underwritten public offering (excluding, for the exercise avoidance of warrants doubt, registered direct offerings), (iv) securities issued upon any split, dividend, combination or other similar event with respect to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company Company, (v) securities subsequently issued upon conversion, exercise or exchange of those securities that have been issued in compliance with, or on issuance were exempt from the date hereof on a fully-diluted basis assuming preemptive rights provided for in this Section 5.3, and (vi) shares of Common Stock or convertible securities or rights issued or issuable in connection with mergers, acquisitions, strategic transactions, commercial relationships and debt financings approved by the exercise Board of this Debenture and of all other outstanding options and warrants to purchase capital stock Directors of the Company, including the Investor Designee; provided provided, further, that in connection with any underwritten public offering, the $10 per share Company will use reasonable best efforts to allow each Investor to purchase price a sufficient amount of such offered securities so as to maintain as closely as possible such Investor’s proportionate interest in the Company on an as-converted basis as described above (disregarding any allocations of such offered securities that may be made by the underwriters to Affiliates of any Investor in the ordinary course investment business of such Affiliates). An Investor shall be subject deemed to adjustment as provided in have waived its rights under this Section 2.5 above; and provided further that 5.3 if such Investor shall have not delivered to the determination Company its written election to purchase such securities within ten (10) Business Days of receipt of the Holder's percentage holdings Company’s notice of such offering describing the capital stock of material terms thereof (such ten (10) Business Day period, the “Offer Period”). If the Investors fail to exercise their purchase right pursuant to this Section 5.3, then the Company shall be adjusted downward each time have the Holder fails right, until the expiration of one hundred eighty (180) days commencing upon the expiration of the Offer Period, to exercise its preemptive rights as provided issue such New Securities to one (1) or more third parties on terms no more favorable to the purchasers thereof than the terms specified in the Company’s notice of such offering to the Investors, after which the terms of this Section 4.9 and each time any shares 5.3 shall again apply to the Company’s offering of capital stock are issued as described in clause (i) abovesuch New Securities.

Preemptive Rights. So long as this Debenture is outstanding and owned by (a) If the HolderCompany or any of its Subsidiaries proposes to issue additional equity securities, the Holder shall have a preemptive right (that isincluding any warrants, a right options or other rights to purchase its pro rata share of all capital stock acquire equity of the Company on a fully diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock of the Company, including unissued shares or any rights of its subsidiaries or options to purchase such capital stock, or any debt securities that are convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors or exchangeable or exercisable for equity securities of the Company for or any of its Subsidiaries (with the exception of any issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect in connection with any acquisition of assets of another Person by the Company or any of its Subsidiaries, whether by purchase of stock, merger, consolidation, recapitalizationpurchase of all or substantially all of the assets of such Person or otherwise (excluding any issuance for purposes of financing such transaction) approved by the Board and the requisite holders of the Series E Preferred Stock and Series E-2 Preferred Stock to the extent required under the Series E Certificate of Designation, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon Exempted Securities (as such term is defined in the exercise Series E Certificate of warrants or options held Designation), (iii) in an underwritten public offering resulting in gross proceeds of at least $50,000,000 and at a price per share pursuant to which the Company’s market capitalization would be at least $175,000,000 and (iv) approved by officers, directors or other employees holders of the Company or warrants issued to Senior Lenders. In connection majority of the Series E Preferred Stock and Series E-2 Preferred Stock, voting as a separate class (in each case, having been approved in accordance with the exercise terms of options granted pursuant this Agreement and the Series E Certificate of Designation, to the Company's employee stock option plans or in connection with extent applicable)) (“Preemptive Securities”), the exercise Company shall provide written notice (an “Issuance Notice”) to each holder of warrants issued Preferred Securities of such anticipated issuance no later than twenty-two (22) Business Days prior to the Senior Lendersanticipated issuance date. Such notice shall set forth the principal terms and conditions of the issuance, including a description of the Preemptive Securities proposed to be issued, the Holder proposed purchase price for such Preemptive Securities and the anticipated issuance date. Each holder of Preferred Securities shall have the option at any time or from time to time during the term of this Debenture right to purchase Shares a number of Preemptive Securities determined by multiplying (i) the number of Preemptive Securities proposed to be issued, by (ii) a fraction, the numerator of which is the number of shares of Preferred Stock held by such Stockholder on an as-converted basis at a price the time the Issuance Notice for such Preemptive Securities is given and the denominator of $10 per share in order to maintain its percentage holdings which is the total number of shares of the capital stock of the Company on the date hereof Company’s Common Stock issued and outstanding on a fully-diluted diluted, as converted, basis assuming on the exercise date of this Debenture and the Issuance Notice (the “Pro Rata Portion”). Each holder of all other outstanding options and warrants Preferred Securities that desires to purchase capital stock Preemptive Securities at the price and on the terms and conditions specified in the Company’s notice must deliver an irrevocable written notice to the Company (a “Preemptive Exercise Notice”) no later than ten (10) Business Days after the delivery of the Company; provided Issuance Notice, setting forth (x) the number of such Preemptive Securities for which such right is exercised (which such number shall not exceed such Stockholder’s Pro Rata Portion of such Preemptive Securities) and (y) the maximum number of additional Preemptive Securities that such Stockholder would be willing to purchase in excess of such Stockholder’s Pro Rata Portion in the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further event that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails any other Stockholder or other Person entitled to exercise its preemptive rights as provided in this Section 4.9 and each time any shares with respect to such issuance elects not to purchase its full Pro Rata Portion of capital stock are issued as described in clause (i) abovesuch Preemptive Securities.

Preemptive Rights. So long as this Debenture is outstanding Each Stockholder that wishes to subscribe for up to such Stockholder’s Pro Rata Share of New Securities (each, a “Subscribing Stockholder”), upon the same economic terms and owned subject to the conditions set forth in the Preemptive Rights Notice, shall deliver written notice to the Company within twenty (20) days of the date of the Preemptive Rights Notice, which notice shall specify the number of New Securities (not to exceed such Subscribing Stockholder’s Pro Rata Share thereof) that such Subscribing Stockholder desires to acquire in the Subject Issuance. Preemptive Rights Closing. The closing (the “Preemptive Rights Closing”) of the purchase by the Holder, Subscribing Stockholders of New Securities pursuant to this Article VI shall take place at the Holder shall have a preemptive right (that is, a right to purchase its pro rata share of all capital stock principal office of the Company on a fully diluted basis assuming either, at the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock option of the Company, based on its holdings at that date, (a) on the same terms and conditions as those upon which thirtieth (30th) day after the date of the Preemptive Rights Notice (or if such capital stock thirtieth (30th) day is proposed to be soldnot a Business Day, then on the next succeeding Business Day) to acquire any shares of capital stock of or (b) simultaneously with (and, if specified by the Company, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by as a part of) the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lendersclosing of, the Holder shall have Subject Issuance. At the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of Preemptive Rights Closing, the Company shall deliver to each Subscribing Stockholder an original certificate or other appropriate instrument evidencing the New Securities to be adjusted downward each time purchased by such Subscribing Stockholder and registered in the Holder fails name of such Subscribing Stockholder or its designated nominee(s), against payment to exercise its preemptive rights as provided the Company of the appropriate consideration therefor. The New Securities issued pursuant to this Article VI shall be duly authorized, fully paid and non-assessable, not subject to any Lien and freely transferable subject only to compliance with any applicable securities laws. Form of Consideration. All payments for New Securities pursuant to this Article VI shall be made in this Section 4.9 accordance with the payment terms specified in the Preemptive Rights Notice (deferred, contingent or otherwise) and each time shall be made in cash, notwithstanding any shares other payment terms offered to the Company by the proposed subscriber. If the proposed consideration for any such sale specified in the Preemptive Rights Notice is to be paid in any property other than cash, the Company shall engage and instruct a reputable independent accounting firm (not acting or representing the Company in other matters at that time) to prepare a valuation of capital stock are issued as described such property. The costs of such accounting firm in clause (i) aboverespect of such valuation shall be borne by the Company.

Preemptive Rights. So long Prior to a Final Exit Event or an Initial Public Offering, if the Company proposes to issue additional Interests or securities convertible into or exercisable or exchangeable for Interests (other than (a) issuances of Management Incentive Units to Officers or other employees or consultants of the Company, its Subsidiaries or the Management Company (as approved in accordance with the terms of this Debenture is outstanding and owned Agreement) (b) issuances of Interests upon the consummation of Capital Calls or otherwise contemplated by this Agreement, (c) Interests issued by the HolderCompany as consideration in an acquisition of any other Person, business or assets (as approved in accordance with the terms of this Agreement), (d) Interests issuable upon the conversion, exercise or exchange of Interests, (e) Interests issued to Exaro II Jonah under the Additional Exaro II Jonah Commitment or to Xxxxx under the Additional Xxxxx Commitment or (f) Interests issued to satisfy any repurchase right or obligation of the Company related to the termination of any employee of the Company, its Subsidiaries or the Management Company), the Holder Company shall give written notice to the Common Unitholders who are not Defaulting Members setting forth the purchase price, rights and limitations of such additional Interests and the terms and conditions upon which they are proposed to be issued. Thereafter, each Common Unitholder who is not a Defaulting Member and is an accredited investor as defined in the Securities Act and certifies as such to the Company’s satisfaction (each, an “Eligible Investor”), shall have a the preemptive right (that is, a right to purchase acquire up to its pro rata share of all capital stock such additional Interests. The Eligible Investors may exercise such preemptive rights by purchasing, within 20 Business Days of receiving notice of the proposed issuance from the Company on a fully diluted basis assuming (the exercise of this Debenture and of all other outstanding options and warrants “Preemptive Rights Notice Period”), up to purchase capital stock their respective pro rata share of the Company, based on its holdings at that date, on additional Interests upon the same terms and conditions as those upon which such capital stock is proposed and for the purchase price set forth in the notice. If any Eligible Investor does not elect to be sold) to acquire any shares of capital stock purchase its full pro rata share of the Companyadditional Interests, including unissued shares or any rights or options those Eligible Investors who have elected to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors their full pro rata share of the additional Interests and who have notified the Company for issuance after within the date hereof; provided, however, Preemptive Rights Notice Period that the foregoing provision shall not apply they desire to any such Capital Stock purchase more than their full pro rata share of the Company: (i) issued to effect additional Interests may purchase their respective pro rata share of any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees remaining balance of the Company or warrants issued to Senior Lendersadditional Interests. In connection with After the exercise expiration of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior LendersPreemptive Rights Notice Period, the Holder Company shall have the option at any time or from time power to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings sell all of the capital stock additional Interests that have not been purchased to one or more third parties, but only upon the terms and conditions and for the purchase price set forth in the notice or upon more economically favorable terms to the Company and the existing Members and provided that, if such sale is not consummated on or before 120 days after the expiration of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of Preemptive Rights Notice Period, the Company shall be adjusted downward each time must comply again with the Holder fails to exercise its preemptive rights as provided procedures set forth in this Section 4.9 and 3.3. In each time any shares of capital stock are issued case, the phrase “pro rata share” as described used in clause (i) abovethis Section 3.3 shall mean such Eligible Investor’s pro rata share based on the Eligible Investor’s respective Fully-Funded Percentage Interest.

Preemptive Rights. So long as 17.5% of the Preferred Shares issued to Subscribers on the last Closing Date to occur remain outstanding, if the Company offers to sell Covered Securities (as defined below) in a public or private offering of Covered Securities solely for cash (a “Qualified Offering”), each Subscriber shall be afforded the opportunity to acquire from the Company, for the same price and on the same terms as such Covered Securities are offered, such Subscriber’s pro rata portion (determined by dividing the number of Preferred Shars purchased by such Subscriber in this Debenture is outstanding and owned Offering by the Holder, the Holder shall have a preemptive right (that is, a right to purchase its pro rata share total number of all capital stock Preferred Shares issued in this Offering) of 6.25% of the Company on a fully diluted basis assuming the exercise amount of this Debenture Covered Securities so offered. “Covered Securities” means Preferred Stock and of all other outstanding options and any rights, options, or warrants to purchase capital or securities convertible into or exercisable or exchangeable for Preferred Stock, other than (i) securities issuable upon conversion of any of the Preferred Shares or upon exercise of the Warrants; (ii) securities issued upon the conversion or exercise of any debenture, warrant, option, or other convertible security which is outstanding as of the first Closing Date to occur; (iii) Preferred Stock issuable upon a stock split, stock dividend, or any subdivision of shares of Preferred Stock approved by Company stockholders; (iv) shares of Preferred Stock (or options, convertible securities, or other rights to purchase such shares of Preferred Stock) issued or issuable to employees or directors of, or consultants providing bona fide services to, the Company pursuant to an Approved Stock Plan (as defined below), (v) Preferred Stock, options or convertible securities issued to banks, equipment lessors or other financial institutions pursuant to a debt financing or equipment leasing approved by the board of directors of the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold(vi) to acquire any shares of capital stock Preferred Stock, options or convertible securities issued to suppliers or third party service providers in connection with the provision of goods or services pursuant to transactions approved by the board of directors of the Company, including unissued and (vii) shares of Preferred Stock, options or any rights or options convertible securities issued as acquisition consideration pursuant to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation by the Company by merger, purchase of substantially all of the assets or other entity; or (ii) issued upon reorganization, each as approved by the exercise board of warrants or options held by officers, directors or other employees of the Company and the stockholders of the Company (each an “Excluded Issuance”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or warrants subsequent to the date hereof pursuant to which shares of Common Stock and standard rights, warrants, or options to subscribe for, purchase, or otherwise acquire Common Stock may be issued to Senior Lendersany employee, officer, or director for services provided to the Company in their capacity as such. In connection with Prior to making any Qualified Offering of Covered Securities, the Company shall give the Subscriber written notice at the address shown on each Subscriber’s signature page hereto of its intention to make such an offering, describing, to the extent then known, the anticipated amount of securities, and other material terms then known to the Company upon which the Company proposes to offer the same (such notice, a “Qualified Offering Notice”). The Subscriber shall then have 10 days after receipt of the Qualified Offering Notice (the “Offer Period”) to notify the Company in writing that it intends to exercise such preemptive right and as to the amount of options granted Covered Securities the Subscriber desires to purchase, up to the maximum amount calculated pursuant to this Section 9(b) (the “Designated Securities”). Such notice constitutes a non-binding indication of interest of the Subscriber to purchase the amount of Designated Securities specified by the Subscriber (or a proportionately lesser amount if the amount of Covered Securities to be offered in such Qualified Offering is subsequently reduced) at the price (or range of prices) established in the Qualified Offering and other terms set forth in the Company's employee stock option plans ’s notice to it. Any failure to respond or to confirm the Subscriber’s interest in connection with purchasing any Covered Securities to which it is entitled under this Section 9(b) during the exercise Offer Period constitutes a waiver of warrants issued its preemptive rights in respect of such offering or as to the Senior LendersCovered Securities as to which no interest in purchasing is received, as applicable. The sale of the Holder Covered Securities in the Qualified Offering, including any Designated Securities, shall have be closed not later than 120 days after the option at any time or from time end of the Offer Period. The Covered Securities to time during the term of this Debenture be sold to purchase Shares other investors in such Qualified Offering shall be sold at a price of $10 per share not less than, and upon terms no more favorable to such other investors than, those specified in order to maintain its percentage holdings of the capital stock of Qualified Offering Notice. If the Company on does not consummate the date hereof on a fullysale of Covered Securities to other investors within such 120-diluted basis assuming day period, the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; right provided that the $10 per share purchase price hereunder shall be subject revived and such securities shall not be offered unless first reoffered to adjustment as provided the Subscribers in Section 2.5 above; accordance herewith. Notwithstanding anything to the contrary set forth herein and provided further that unless otherwise agreed by the determination Subscriber, by not later than the end of the Holder's percentage holdings of the capital stock of such 120-day period, the Company shall either confirm in writing to the Subscriber that the Qualified Offering has been abandoned or shall publicly disclose its intention to issue the Covered Securities in the Qualified Offering, in either case in such a manner that the Subscriber will not be adjusted downward each time in possession of any material, non-public information thereafter. If the Holder fails to exercise Subscriber exercises its preemptive rights as right provided in this Section 4.9 9(b) with respect to a Qualified Offering that is an underwritten public offering or an offering made to qualified institutional buyers (as such term is defined in the Commission’s Rule 144A under the 1000 Xxx) for resale pursuant to Rule 144A under the 1933 Act (a “Rule 144A offering”), a private placement or other offering, whether not registered under the 1933 Act, the Company shall offer and sell the Subscriber, if any such offering is consummated, the Designated Securities (as adjusted, upward to reflect the actual size of such offering when priced but not in excess of each time any shares Subscriber’s Subscriber Percentage Interest) at the same price as the Covered Securities are offered to third persons (not including the underwriters or the initial purchasers in a Rule 144A offering that is being reoffered by the initial purchasers) in such offering and shall provide written notice of capital stock are issued as described in clause (i) abovesuch price upon the determination of such price.

Preemptive Rights. So (a) In the event of any offering of New Securities (as defined below) by the Company, each Investor, for so long as this Debenture is outstanding and owned by the HolderNotes, the Holder Warrants or any Note Shares or Warrant Shares remain outstanding, shall have a preemptive right (that is, a the right to purchase its pro rata share a percentage of all capital stock the New Securities being offered that is equal to the percentage of the outstanding Common Stock of the Company owned by such Investor on a fully diluted an as-converted basis assuming (treating for this purpose as outstanding all shares of Common Stock issuable upon the full exercise of this Debenture the Warrants and of all other outstanding options and warrants to purchase capital stock full conversion of the CompanyNotes then outstanding, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock including conversion of the Companymaximum amount of Interest scheduled to accrue during the First Five Year Note Period (as defined in the Notes)); provided, including unissued shares or any rights or options however, that this right shall not apply to purchase such capital stock(i) equity compensation grants to employees, consultants, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized directors pursuant to plans or other arrangements approved by the Board of Directors of the Company for issuance after the date hereof; providedCompany, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) securities issued upon the conversion or exercise of warrants any convertible or options held by officers, directors or other employees exercisable securities that are outstanding as of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise terms in effect on such date, (iii) the issuance of this Debenture and securities in connection with any underwritten public offering (excluding, for the avoidance of all doubt, registered direct offerings); (iv) securities issued upon any split, dividend, combination or other outstanding options and warrants similar event with respect to purchase the capital stock of the Company; (v) securities subsequently issued upon conversion, exercise or exchange of those securities that have been issued in compliance with, or on issuance were exempt from the preemptive rights provided for in this Section 5.4, and (vi) shares of Common Stock or convertible securities issued or issuable in connection with mergers, acquisitions, strategic transactions and debt financings approved by the Board of Directors of the Company, including the Investor Designee; provided, further, that in connection with any underwritten public offering, the $10 per share Company will use reasonable best efforts to allow each Investor to purchase price a sufficient amount of such offered securities so as to maintain as closely as possible such Investor’s proportionate interest in the Company on an as-converted basis as described above (disregarding any allocations of such offered securities that may be made by the underwriters to Affiliates of any Investor in the ordinary course investment business of such Affiliates). An Investor shall be subject deemed to adjustment as provided in have waived its rights under this Section 2.5 above; and provided further that 5.4 if such Investor shall have not delivered to the determination Company its written election to purchase such securities within ten (10) Business Days of receipt of the Holder's percentage holdings Company’s notice of such offering describing the capital stock of material terms thereof (such ten (10) Business Day period, the “Offer Period”). If the Investors fail to exercise their purchase right pursuant to this Section 5.4, then the Company shall be adjusted downward each time have the Holder fails right, until the expiration of one hundred eighty (180) days commencing upon the expiration of the Offer Period, to exercise its preemptive rights as provided issue such New Securities to one (1) or more third parties on terms no more favorable to the purchasers thereof than the terms specified in the Company’s notice of such offering to the Investors, after which the terms of this Section 4.9 and each time any shares 5.4 shall again apply to the Company’s offering of capital stock are issued as described in clause (i) abovesuch New Securities.

Preemptive Rights. So long (a) Prior to an Initial Public Offering, with respect to any Eligible Offering (as this Debenture is outstanding and owned by defined below), each Stockholder (the Holder“Preemptive Right Holders”), the Holder or, at such Stockholder’s election, one (1) or more of its Affiliates (which Affiliate(s) shall (if not already parties hereto), prior to receiving any Preemptive Securities, execute a Joinder Agreement), shall have a preemptive right the right, but not obligation (that isthe “Preemptive Right”), a right to purchase its pro rata share of any or all capital stock of the Company on a fully diluted basis assuming Securities, to the extent applicable (collectively, “Preemptive Securities”) in any Eligible Offering (as defined below), subject in each case to the exceptions as set forth below; provided that Stockholders owning not less than fifty (50%) of the then-outstanding Shares may waive the Preemptive Rights provided in this Section 3.3 for all Stockholders; provided, further, that with respect to each particular Eligible Offering, any Preemptive Right Holder electing to exercise its Preemptive Right must subscribe in an equal proportion to the entirety of this Debenture and such Preemptive Securities offered if such Preemptive Securities have multiple components, including any combination of all other outstanding options and warrants debt securities, Common Stock and/or preferred stock, if applicable. Each Preemptive Right Holder electing to exercise its Preemptive Right will be entitled to purchase capital stock up to that portion of the CompanyPreemptive Securities calculated by multiplying (i) the number of shares (or other units) of Preemptive Securities by (ii) the quotient obtained by dividing, based on its holdings at that dateup to a maximum of 1.0, on (x) the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any number of shares of capital stock Common Stock owned by such Preemptive Right Holder by (y) the total number of shares of Common Stock owned by all Preemptive Right Holders (such portion of the CompanyPreemptive Securities, including unissued shares or any rights or options the “Preemptive Percentage Allocation”), and shall specify what amount such Preemptive Right Holder desires to purchase such capital stock, or any purchase. Any Preemptive Right Holder that is a beneficial owner of Company Securities that are securities convertible into such capital stock (collectivelyor exchangeable for Common Stock or are options, "Capital warrants or other rights to acquire Common Stock"), authorized and wishes to exercise the Preemptive Right to purchase Preemptive Securities, shall, to the extent allowed by the Board terms of Directors such Company Securities, convert, exercise or exchange that number of such Company Securities as such Preemptive Right Holder desires to be taken into account for purposes of calculating its Preemptive Percentage Allocation into or for shares of Common Stock within the Company for issuance after Preemptive Notice Period (as defined below) and prior to delivery of its Preemptive Purchase Notice (as defined below) and only such Shares held by such Preemptive Right Holder at the date hereoftime of delivery of its Preemptive Purchase Notice shall be considered in calculating such Preemptive Right Holder’s Preemptive Percentage Allocation; provided, however, that if the foregoing provision terms of such Company Securities do not allow such conversion, exercise or exchange during the Preemptive Notice Period, such Preemptive Right Holder shall not apply be entitled to use such Company Securities in calculating its Preemptive Percentage Allocation, and any Preemptive Right Holder that holds only such Capital Stock of the Company: (i) issued to effect any mergerCompany Securities that may not be so converted, consolidation, recapitalization, exercised or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder exchanged shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall not be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails eligible to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) abovethe Preemptive Right.

Preemptive Rights. So The Company hereby grants to each Investor for so long as this Debenture is outstanding and owned by the Holderhe or it shall own, beneficially or of record, any Capital Stock, the Holder shall have a preemptive right (that is, a right to purchase its from the Company his pro rata share portion of all capital stock an offering of any equity security or any security which is or may become convertible or exchangeable into an equity security of the Company on a fully diluted basis assuming the exercise of this Debenture whether now authorized or not, and of all other outstanding rights, options and or warrants to purchase equity securities or capital stock and securities of any type whatsoever that are, or may become convertible into or exchangeable for equity securities or Capital Stock, when issued or sold by the Company, based on its holdings at that date, on the same best terms and conditions as those upon which said securities are offered to other purchasers thereof; provided, however, that there will be no such capital preemptive right in the case of (i) shares issued to employees, officers, directors, consultants or other persons performing services for the Company pursuant to any stock is proposed to be sold) to acquire any shares of capital stock of the Companyoffering, including unissued shares plan or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized arrangement approved by the Board of Directors of the Company for and a majority-in-interest of the Investors, (ii) the re-issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock employees of shares of the Company: 's stock which have been acquired from employees pursuant to restricted stock arrangements, (iiii) shares issued under the Purchase Agreement or pursuant to effect any merger, consolidation, recapitalizationthe exercise of outstanding options or warrants, or acquisition the conversion of assets outstanding convertible securities or the Preferred Shares, (iv) shares issued in the acquisition of another corporation company, (v) equity securities issued as a stock dividend to holders of Common Stock or other entity; Preferred Stock or upon any stock split, subdivision or combination of shares of Capital Stock, (vi) securities issued to the public pursuant to a registration statement filed under the Act, or (iivii) issued upon the exercise up to an aggregate of warrants or options held by officers, directors or other employees 444,444 shares of Common Stock to trade creditors of the Company to settle up to $200,000 of indebtedness of the Company existing as of March 31, 1998 hereof provided such issuances are at $.45 per share or warrants issued more. The Company shall give the Investors thirty (30) days written notice (the "Notice Period") of any proposed security issuance which would give rise to Senior Lenderspreemptive rights as contemplated in this Section 6. In connection with the exercise of options granted pursuant Each Investor wishing to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder purchase securities shall have the option at any time or from time to time during the term of this Debenture right to purchase Shares at a price of $10 per share in order to maintain its percentage holdings that portion of the capital stock securities which is determined by a fraction the numerator of which is the number of shares of Common Stock held by such Investor and the denominator of which is the number of shares of Common Stock held by all Investors who wish to purchase a portion of the Company on securities (assuming for purposes of the date hereof on a fully-diluted basis assuming calculation the exercise of this Debenture and conversion of all other outstanding options and warrants securities of the company held by the Investors). Each participating Investor shall have a further pro rata right (a "right of over-allotment") to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject securities refused by any Investor who declines to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails fully exercise its preemptive right. Each Investor desiring to exercise its preemptive rights as provided right must notify the Company in this Section 4.9 and each time any shares writing prior to the close of capital stock are issued as described in clause business on the last day of Notice Period, stating (i) aboveits intent to purchase, (ii) whether or not it intends to exercise its right of over-allotment, and (iii) the maximum amount of securities it is willing to purchase. The foregoing preemptive rights shall terminate immediately upon the completion of the Company's Initial Public Offering. In the event any Investor fails to exercise in full its preemptive right (after giving effect to the over-allotment provisions hereof), the Company shall have ninety (90) days thereafter to sell the securities with respect to which the Investor's option was not exercised, at a price and upon terms no more favorable to the purchasers thereof than specified in the Company's notice. To the extent the Company does not sell all the securities so offered within said ninety (90) day period, the Company shall not thereafter issue or sell any such securities without first offering such securities to the Investors in the manner provided herein.

Preemptive Rights. So long as this Debenture is outstanding and owned by Harvard shall have, pursuant to the HolderSubscription Agreement, the Holder shall have a preemptive right (that is, a right to purchase its pro rata share from Licensee in offerings of equity securities by Licensee (excluding (a) Exempted Issuances, (b) shares of common stock issued or issuable, and options, warrants or other rights to purchase Common Stock issued or issuable to Licensee’s employees, consultants, officers, directors, or advisors as part of an incentive compensation arrangement or to Licensee’s former employees, consultants, officers, directors, or advisors as part of a settlement of any dispute regarding incentive compensation arrangements and (c) shares of Common Stock issued or issuable to banks, equipment lessors, real property lessors, financial institutions or other persons engaged in the business of making loans pursuant to a debt financing, commercial leasing or real property leasing transaction; shares of Common Stock issued or issuable in connection with any settlement of any action, suit, proceeding or litigation) after the Financing Threshold has been achieved that portion of such equity securities as equals the proportion that the common stock then held by Harvard (including all capital shares of common stock then issuable upon conversion and/or exercise, as applicable, of preferred stock and any other equity securities then held by Harvard) bears to the total common stock of the Company Licensee then outstanding on a fully diluted basis assuming Fully-Diluted Basis. The foregoing right shall be subject to the terms, conditions and exceptions as are contained in the Subscription Agreement, which terms, conditions and exceptions shall be no less favorable to Harvard than the terms, conditions and exceptions offered to the holders of preferred stock holding similar rights, unless otherwise provided in this Section 4.1.3. The Subscription Agreement shall provide that during the period prior to any Change of Control of Licensee or any Initial Public Offering, Harvard may not sell or otherwise transfer the shares acquired by Harvard upon exercise of this Debenture and the foregoing right without the consent of all Licensee to any third party other outstanding options and warrants to purchase capital than Osage or a holder of the preferred stock of Licensee. The Subscription Agreement shall provide that during the Companyperiod prior to any Change of Control of Licensee or any Initial Public Offering, based on its holdings at that date, on Harvard may sell or otherwise transfer the same terms and conditions as those shares acquired by Harvard upon which such capital stock is proposed exercise of the foregoing right without the consent of Licensee to be sold) to acquire any shares third party other than Osage or a holder of capital the preferred stock of the Company, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereofLicensee; provided, howeverin each such case, that Harvard notifies Licensee in writing, and the transferee agrees and consents to be bound in writing by the transaction agreements pursuant to which such securities were originally acquired. The Subscription Agreement shall provide that Harvard may not assign the foregoing provision shall not apply right without the consent of Licensee to any such Capital Stock third party other than Osage or a holder of the Company: (i) issued preferred stock of Licensee. The Subscription Agreement shall provide that Harvard may assign the foregoing right without the consent of Licensee to effect any merger, consolidation, recapitalization, third party other than Osage or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees a holder of the Company or warrants issued to Senior Lenders. In connection with the exercise preferred stock of options granted pursuant to the Company's employee stock option plans or Licensee; provided, that, in each such case, Harvard notifies Licensee in writing in connection with the exercise transfer of warrants issued such rights. With regard to assignment of the Senior Lendersforegoing right to Osage or a holder of the preferred stock of Licensee, the Holder Subscription Agreement shall have provide that Harvard may assign the option at foregoing right in whole or in part and in any time one or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) abovemore instances.

Preemptive Rights. So long as this Debenture is outstanding and owned by The Preferred Stock will not have any preemptive rights. Anti-Takeover Effects of Certain Provisions of the HolderCertificate of Incorporation, the Holder shall Bylaws, and Delaware Law Certain provisions of our amended and restated certificate of incorporation and our Third Amended and Restated Bylaws (the “Bylaws”) may be considered to have an anti-takeover effect and may delay or prevent a preemptive right (tender offer or other corporate transaction that isa stockholder might consider to be in its best interest, including those transactions that might result in payment of a right premium over the market price for our shares. These provisions are designed to purchase its pro rata share discourage certain types of all capital stock transactions that may involve an actual or threatened change of control of the Company on a fully diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock without prior approval of the Company’s board of directors. These provisions are meant to encourage persons interested in acquiring control of the Company to first consult with the Company’s board of directors to negotiate terms of a potential business combination or offer. For example, based on its holdings at our amended and restated certificate of incorporation and Bylaws: • provide for a classified board of directors, pursuant to which the Company’s board of directors is divided into three classes whose members serve three-year staggered terms; • provide that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of capital stock size of the Company’s board of directors will be set by members of the board of directors, and any vacancy on the board of directors, including unissued shares or any rights or options a vacancy resulting from an enlargement of the board of directors, may be filled only by vote of a majority of the directors then in office; • do not permit stockholders to purchase such capital stocktake action by written consent; • provide that, or any securities convertible into such capital stock (collectivelyexcept as otherwise required by law, "Capital Stock"), authorized special meetings of stockholders can only be called by the Board Company’s board of Directors directors; • establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of stockholders, including proposed nominations of candidates for election to the Company for issuance after Company’s board of directors; • limit consideration by stockholders at annual meetings to only those proposals or nominations specified in the date hereof; provided, however, that notice of meeting or brought before the foregoing provision shall not apply to any such Capital Stock meeting by or at the direction of the Company: (i) ’s board of directors or by a stockholder of record on the record date for the meeting who is entitled to vote at the meeting and who has delivered timely written notice in proper form to our secretary of the stockholder’s intention to bring such business before the meeting; • authorize the issuance of “blank check” preferred stock that could be issued by the Company’s board of directors to effect any mergerincrease the number of outstanding shares or establish a stockholders rights plan making a takeover more difficult and expensive; and • do not permit cumulative voting in the election of directors, consolidationwhich would otherwise allow less than a majority of stockholders to elect director candidates. The amended and restated certificate of incorporation expressly states that the Company has elected not to be governed by Section 203 of the Delaware General Corporate Law, recapitalizationwhich prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the time the stockholder became an interested stockholder, subject to certain exceptions, including if, prior to such time, the board of such corporation approved the business combination or the transaction which resulted in the stockholder becoming an interested stockholder. “Business combinations” include mergers, asset sales and other transactions resulting in a financial benefit to the “interested stockholder.” Subject to various exceptions, an “interested stockholder” is a person who, together with his or her affiliates and associates, owns, or acquisition within three years did own, 15% or more of assets the corporation’s outstanding voting stock. These restrictions generally prohibit or acquisition delay the accomplishment of another corporation mergers or other entity; takeover or (ii) issued upon change-in-control attempts that are not approved by a company’s board. Although the exercise of warrants or options held by officers, directors or other employees Company has elected to opt out of the statute’s provisions, the Company or warrants issued could elect to Senior Lendersbe subject to Section 203 in the future. In connection with Common Stock Rights For a description of the exercise rights of options granted holders of Class A common stock to be delivered upon conversion of the Preferred Stock, see “Description of Capital Stock” included in the “Description of the registrant’s securities registered pursuant to Section 12 of the Securities Exchange Act of 1934” filed as Exhibit 4.5 to the Company's employee stock option plans or in connection with ’s Annual Report on Form 10-K for the exercise of warrants issued to the Senior Lendersfiscal year ended December 31, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) above2021.

Preemptive Rights. So (a) For so long as a Purchaser, together with its Affiliates and, for purposes of this Debenture Section 4.22, persons who share a common discretionary investment advisor with such Purchaser, holds a Minimum Ownership Interest, if at any time after the date hereof the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series C Preferred Stock, Non-Voting Common Stock or restricted stock), or any securities, options or debt that is outstanding and owned by the Holderconvertible or exchangeable into equity or that includes an equity component (such as, the Holder shall have a preemptive right an “equity kicker”) (that isincluding any hybrid security) (any such security, a right to purchase its pro rata share “New Security”) (other than (i) any Common Stock, Non-Voting Common Stock or other securities issuable upon the exercise or conversion of all capital stock any securities of the Company on a fully diluted basis assuming issued or agreed or contemplated (and disclosed to the Purchasers in writing) to be issued as of the date hereof; (ii) pursuant to the granting or exercise of this Debenture and employee stock options, restricted stock or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board or the issuance of all stock pursuant to the Company’s employee stock purchase plan approved by the Board or similar plan where stock is being issued or offered to a trust, other outstanding options and warrants to purchase capital stock entity or otherwise, for the benefit of any employees, officers or directors of the Company, based on its holdings at in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate the number of shares of Common Stock authorized and reserved for issuance under the 2019 Plan as of the date hereof (excluding employee stock options, restricted stock or other stock incentives issued under the 2003 Plan and the 2009 Plan which are outstanding as of the date hereof); or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction), then that date, Purchaser shall be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms and conditions as those upon which such capital stock is securities are proposed to be soldoffered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in the Company (or its Subsidiaries) immediately prior to acquire any such issuance of New Securities. The amount of New Securities that such Purchaser shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the total number of shares of capital stock Common Stock then held by such Purchaser (counting for such purposes all shares of Common Stock into or for which any securities owned by such Purchaser are directly or indirectly convertible or exercisable, including the Series C Preferred Stock and the Non-Voting Common Stock), if any, and the denominator of which is the total number of shares of Common Stock then outstanding (counting for such purposes all shares of Common Stock into or for which any securities owned by such Purchaser are directly or indirectly convertible or exercisable, including the Series C Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall a Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Purchaser, together with any other Person whose Company securities would be aggregated with such Purchaser’s Company securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by such Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9% with respect to Castle Creek) of the Voting Securities or more than 33.3% of the Company, including unissued shares or any rights or options to purchase such capital stock, or any securities convertible into such capital stock (collectively, "Capital Stock"), authorized by the Board of Directors of the Company for issuance after the date hereof; provided, however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in connection with the exercise of warrants issued to the Senior Lenders, the Holder shall have the option at any time or from time to time during the term of this Debenture to purchase Shares at a price of $10 per share in order to maintain its percentage holdings of the capital stock of the Company on the date hereof on a fully-diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and provided further that the determination of the Holder's percentage holdings of the capital stock of the Company shall be adjusted downward each time the Holder fails to exercise its preemptive rights as provided in this Section 4.9 and each time any shares of capital stock are issued as described in clause (i) above’s total equity outstanding.