Common use of Subsequent Offerings Clause in Contracts

Subsequent Offerings. The Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 hereof. The Investor's pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus the number of shares of Common Stock (and the number of shares of Common Stock issued or issuable upon the conversion of any Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, to (b) the total number of shares of the Company's outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities or upon exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities. The term "Equity Securities" shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertible, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, or (iv) any such warrant or right.

Subsequent Offerings. The Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any Equity Securities, as defined below, unless in each such case the Company shall have first complied with this Section 4 or the operation of this Section 4 shall have been waived in accordance with the terms herein. Subject to applicable securities laws, each Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.6 hereof. The Each Investor's ’s pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus shares of the number of Company’s Common Stock (including all shares of Common Stock (and the number of shares of Common Stock issuable or issued or issuable upon the conversion of any the Shares or exercise of the Warrants) which such Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's ’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities or upon exercise of any outstanding warrants or optionsthe Shares) immediately prior to the issuance of the Equity Securities. The term "“Equity Securities" ” shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertibleconvertible into or exercisable or exchangeable for, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, security or (iv) any such warrant or right.

Subsequent Offerings. The Each Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.6 hereof. The Each Investor's pro rata share is equal to shall be the ratio of (a) the number of Shares purchased pursuant to Article 2, plus the number of shares of the Company's Common Stock (and the number of including all shares of Common Stock issued or issuable upon the conversion of any the Preferred Stock) of which such Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of the Shares or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities; provided however, that with respect to Oryx Technologies Corp., which includes Oryx Ventures LLC (collectively referred to herein as "Oryx"), the pro rata share shall be the ratio of (c) the number of shares of the Company's Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Shares or exercise of that certain warrant for seven hundred thousand (700,000) shares of the Company's Common Stock issued pursuant to that certain Business and Consultant Management Agreement dated July 20, 2000, between Oryx and the Company) which Oryx is deemed to be a holder immediately prior to the issuance of such Equity Securities to (d) the total number of shares of the Company's outstanding Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Shares or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities. The term "Equity Securities" shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertible, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, security or (iv) any such warrant or right.

Subsequent Offerings. The Investor Subject to applicable securities laws, (i) each Investor, so long as it holds Shares (or shares of Common Stock issued upon conversion of such Shares), shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 hereof4.7 hereof (the “Offered Securities”) (in each case, that share of Offered Securities to which an Investor is entitled to subscribe is referred to herein as a “Subscription Share”). The An Investor's ’s pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus shares of the number of Company’s Common Stock (including all shares of Common Stock (and issuable or issued upon conversion of the number of shares of Common Stock issued Shares or issuable upon the conversion exercise of any outstanding warrants or options) of which such Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's ’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities the Shares or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities. The term "“Equity Securities" ” shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertibleconvertible into or exercisable or exchangeable for, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, security or (iv) any such warrant or right.

Subsequent Offerings. The Subject to applicable securities laws, each Major Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.6 hereof. The Each Major Investor's ’s pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus the number of shares of Common Stock (and the number of including all shares of Common Stock issuable or issued or issuable upon the conversion of any the Shares) which such Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities the Shares or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities. A Major Investor shall be entitled to apportion the right of first refusal hereby granted to it in such proportions as it deemed appropriate among itself and its Affiliates. The term "“Equity Securities" ” shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertibleconvertible into or exercisable or exchangeable for, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, or (iv) any such warrant or right.

Subsequent Offerings. The Each Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 2.4 hereof. The Each Investor's ’s pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant shares of the Company’s Common Stock (including all shares of Common Stock issuable upon conversion of the Preferred Stock or exercise of any outstanding warrants or options) of which such Investor is deemed to Article 2be a holder immediately prior to the issuance of such Equity Securities (including, plus in the case of an issuance prior to the Conversion Date, the number of shares of Common Stock (and the number of shares of Common Stock issued or that would be issuable upon the conversion of any Equity Securitiesthe Series G Preferred Stock immediately following the Conversion Date) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, to (b) the total number of shares of the Company's ’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities the Preferred Stock or upon exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity SecuritiesSecurities (including, in the case of an issuance prior to the Conversion Date, the number of shares of Common Stock that would be issuable upon conversion of the Series G Preferred Stock immediately following the Conversion Date). The term "“Equity Securities" ” shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertibleconvertible into or exercisable or exchangeable for, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, security or (iv) any such warrant or right.

Subsequent Offerings. The Subject to applicable securities laws, each Major Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.6 hereof. The Each Major Investor's ’s pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus the number of shares of the Company’s Common Stock (that are Registrable Securities issued and of which such Major Investor is deemed to be a holder immediately prior to the number issuance of shares of Common Stock issued or issuable upon the conversion of any such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's ’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities the Shares or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities; provided, however that in the event that the Equity Securities offered to the Major Investors pursuant to this Section 4.1 are being issued for a price greater than $0.13356 per share (as adjusted for stock splits and combinations), then the number of shares that a Major Investor shall be deemed to be the holder of for purposes of determining such Major Investor’s pro rata share shall not include outstanding shares of Common Stock held by such Major Investor as of July 21, 2010. The term "“Equity Securities" ” shall mean mean: (i) any Common Stock, Preferred Stock or other security of the Company, ; (ii) any security convertibleconvertible into or exercisable or exchangeable for, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), ; (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, ; or (iv) any such warrant or right.

Subsequent Offerings. The Each Major Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.6 hereof. The Each Major Investor's ’s pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus the number of shares of the Company’s Common Stock (and the number of including all shares of Common Stock issued or issuable upon the conversion of any the Shares) of which such Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's ’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities or the Shares or, to the extent not included within the meaning of “Shares,” upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities; provided, however, that if the price per share of such Equity Securities is less than $0.70 per share (as adjusted for stock splits, dividends, recapitalizations and the like after the date hereof), each Major Investor’s pro rata share shall be equal to the ratio of (a) the number of shares of the Company’s Series Preferred (as defined in the Charter) of which such Major Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities to (b) the total number of shares of the Company’s issued and outstanding Series Preferred (as defined in the Charter) immediately prior to the issuance of such Equity Securities. The term "“Equity Securities" ” shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertible, exchangeable or exercisable, with or without consideration, into or for any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, security or (iv) any such warrant or right.

Subsequent Offerings. The Subject to applicable securities laws, each Major Investor shall have a right of first refusal to purchase its pro rata share Major Investor Pro Rata Share (as defined below) of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 5.6 hereof. For purposes of this Section 5, a Major Investor who chooses to exercise the right of first refusal may designate as purchasers under such right itself or any of its general partners, managing members and/or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. The Investor's pro rata share “Major Investor Pro Rata Share” for each Major Investor is equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus shares of the number of Company’s Common Stock (including all shares of Common Stock (and the number of shares of Common Stock issuable or issued or issuable upon the conversion of any the Shares or other Preferred Stock) of which such Major Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's outstanding ’s Common Stock (including all shares of Common Stock issuable or issued or issuable upon the conversion of any Equity Securities the Shares or upon exercise of any outstanding warrants or optionsother Preferred Stock) immediately prior to the issuance of the such Equity Securities. The term "“Equity Securities" ” shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertibleconvertible into or exercisable or exchangeable for, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, security or (iv) any such warrant or right.

Subsequent Offerings. The Subject to applicable securities laws, Investor shall will have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.6 hereof. The Investor's ’s pro rata share is equal to the greater of (1) the ratio of (a) the number of Shares purchased pursuant to Article 2, plus shares of the number of Company’s Common Stock (including all shares of Common Stock (and issuable or issued upon conversion of the number of shares of Common Stock issued Shares or issuable upon the conversion exercise of any outstanding warrants or options) of which Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's ’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities the Shares or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities; or (2) the ratio of (y) the number of shares of the Company’s Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Shares or upon the exercise of outstanding warrants or options) of which Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities to (z) the total number of shares of the Company’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Shares or upon the exercise of any outstanding warrants or options) immediately following the last issuance of Equity Securities by the Company in which Ionis exercised its right of first refusal under this Section 4. The term "“Equity Securities" shall ” will mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertibleconvertible into or exercisable or exchangeable for, with or without consideration, into any Common Stock, Preferred Stock Stock, or other equity security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, equity security or (iv) any such warrant or right.

Subsequent Offerings. The Investor Each Investor, the Funds, Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxx Xxxxx and the Founders (individually, a “First Refusal Participant”; collectively, the “First Refusal Participants”) shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 5.3 hereof. The Investor's Each First Refusal Participant’s pro rata share is equal to the ratio of (aA) the number of Shares purchased pursuant to Article 2, plus the number of shares of Common Stock the Company’s Ordinary Shares (and the number of including all shares of Common Stock Ordinary Shares issued or issuable upon the conversion of any the Shares) of which such First Refusal Participant is deemed to be a holder immediately prior to the issuance of such Equity SecuritiesSecurities (calculated on an as converted basis) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, to (bB) the total number of shares of the Company's ’s outstanding Common Stock Ordinary Shares (including all shares of Common Stock Ordinary Shares issued or issuable upon the conversion of any Equity Securities the Shares or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities. The term "“Equity Securities" ” shall mean (i) any Common StockOrdinary Shares, Preferred Stock Shares or other security of the Company, (ii) any security convertible, with or without consideration, into any Common StockOrdinary Shares, Preferred Stock Shares or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common StockOrdinary Shares, Preferred Stock Shares or other security, security or (iv) any such warrant or right.

Subsequent Offerings. The Each Investor and holder of Series B Stock shall have a right of first refusal to purchase its pro rata share Pro Rata Share (as defined herein) of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.6 hereof. The Investor's pro rata share is Company may, at its election, sell such Investor and holder of Series B Stock its Pro Rata Amount of Equity Securities at the initial closing of the sale of Equity Securities or at a subsequent closing of which shall take place within ninety (90) days of the initial closing. The Pro Rata Share of an Investor and holder of Series B Stock shall be equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus the number of shares of the Company's Common Stock (and the number of including all shares of Common Stock issued or issuable upon the conversion of any the Preferred Stock) which such Investor and holder of Series B Stock is deemed to hold immediately prior to the issuance of such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities or upon exercise of any outstanding warrants or optionsthe Preferred Stock) immediately prior to the issuance of the Equity Securities. The term "Equity Securities" shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertible, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, or (iv) any such warrant or right.to

Subsequent Offerings. The Each Major Investor and Stockholder shall have a right of first refusal to purchase its pro rata share of all Equity Securities, Securities (as defined below, ) that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.6 hereof. The Each such Investor's or Stockholder's pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus the number of shares of the Company's Common Stock (and the number of including all shares of Common Stock issued or issuable upon the conversion of any Equity Securitiesthe Shares) previously purchased pursuant to this Article 9, held by the which such Investor or any transferee pursuant Stockholder is deemed to Section 11.5, be a holder immediately prior to the issuance of such Equity Securities to (b) the total number of shares of the Company's outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities the Shares or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities. The term "Equity Securities" shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertible, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, security or (iv) any such warrant or right. To the extent Ford Motor Company ("Ford") has the right to purchase shares of the Company pursuant to the Purchase Agreement, such rights may not be amended nor waived without Ford's consent.

Subsequent Offerings. The For so long as the Investor holds any of the Shares (or additional shares of Common Stock issued by the Company to the Investor in connection with a stock split, stock dividend or stock distribution or pursuant to this Section 9.1), the Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, Securities (as defined below, ) that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 hereof9.5. The Investor's pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant of which the Investor is deemed to Article 2, be a holder immediately prior to the issuance of such Equity Securities plus the number of any shares of the Company's Common Stock (and of which the number Investor is deemed to be a holder immediately prior to the issuance of shares of Common Stock such Equity Securities that were issued or issuable upon to the conversion of any Equity Securities) previously purchased Investor pursuant to this Article 9Section 9 or in connection with a stock split, held by stock dividend or stock distribution (collectively, the Investor or any transferee pursuant to Section 11.5, "Eligible Shares") to (b) the total number of shares of the Company's outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities the Series A Preferred or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities. The term "Equity Securities" shall mean (i) any Common Stock, Preferred Stock or other equity security of the Company, (ii) any security convertible, with or without consideration, into any Common Stock, Preferred Stock or other equity security (including any option, warrant or other right option to purchase such a convertible securitysecurity of the Company), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, security or (iv) any such warrant or right.

Subsequent Offerings. The Subject to applicable securities laws, each Major Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.7 hereof. The Each Major Investor's ’s pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus the number of shares of the Company’s Common Stock (and the number of including all shares of Common Stock issued or issuable upon the conversion of the Shares or upon the exercise of any outstanding warrants or options) which such Major Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's ’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities the Shares or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities. The term "“Equity Securities" ” shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertibleconvertible into or exercisable or exchangeable for, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, security or (iv) any such warrant or right. For the purposes of this Section 4, shares of Common Stock issued upon conversion of an Investor’s Preferred Stock pursuant to Article IV, Section E(5) of the Restated Charter shall be excluded from the definition of Registrable Securities and such Investor’s share ownership for the purpose of determining whether such Investor is a “Major Investor.”

Subsequent Offerings. The Subject to applicable securities laws, each Major Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, and debt instruments (other than those issued in the ordinary course of business, such as pursuant to equipment line or leasing arrangements, or real property leasing arrangements) that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.6 hereof. The A Major Investor shall be entitled to apportion the right of first refusal hereby granted to it among itself and its affiliates in such proportions as it deems appropriate. Each Major Investor's ’s pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus shares of the number of Company’s Common Stock (including all shares of Common Stock (and the number of shares of Common Stock issuable or issued or issuable upon the conversion of any the Shares) which such Investor is deemed to be a holder of immediately prior to the issuance of such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's ’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities the Shares or other securities or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities; provided, however, that the pro rata share of MDV VII, LP (together with its affiliates) shall be the greater of such ratio or three thousand seven hundred fifty-seven ten-thousandths (3,757/10,000); and provided further, that the pro rata share of KPCB Holdings, Inc. (together with its affiliates) shall be the greater of such ratio or two thousand one hundred twenty-seven ten-thousandths (2,127/10,000). The term "“Equity Securities" ” shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertibleconvertible into or exercisable or exchangeable for, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, security or (iv) any such warrant or right.

Subsequent Offerings. The Each Investor and holder of Series B Stock shall have a right of first refusal to purchase its pro rata share Pro Rata Share (as defined herein) of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.6 hereof. The Investor's pro rata share is Company may, at its election, sell such Investor and holder of Series B Stock its Pro Rata Amount of Equity Securities at the initial closing of the sale of Equity Securities or at a subsequent closing of which shall take place within ninety (90) days of the initial closing. The Pro Rata Share of an Investor and holder of Series B Stock shall be equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus the number of shares of the Company's Common Stock (and the number of including all shares of Common Stock issued or issuable upon the conversion of any the Preferred Stock) which such Investor and holder of Series B Stock is deemed to hold immediately prior to the issuance of such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities or upon exercise of any outstanding warrants or optionsthe Preferred Stock) immediately prior to the issuance of the Equity Securities. The term "Equity Securities" shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertible, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, security or (iv) any such warrant or right.

Subsequent Offerings. The Investor Each Purchaser shall have a right of first refusal to purchase its pro rata share of all Equity New Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity New Securities excluded by Section 9.6 4(e) hereof. The InvestorEach Purchaser's pro rata share is equal to the ratio of (ax) the number of Sale Shares purchased pursuant and Warrant Shares (assuming full exercise of the Warrants) which such Purchaser is deemed to Article 2, plus be a holder immediately prior to the number issuance of shares of Common Stock (and the number of shares of Common Stock issued or issuable upon the conversion of any Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, such New Securities to (by) the total number of shares of the Company's outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities or upon assuming full exercise of any the Warrants) outstanding warrants or options) immediately prior to the issuance of the Equity New Securities. (Prior to the issuance of the Sale Shares and Warrants pursuant to Section 1(b) hereof, the numerator and denominator of the fraction described in the immediately preceding sentence each shall include such Sale Shares and Warrants.) The term "Equity New Securities" shall mean (i) any Common Stock, Preferred Stock preferred stock or other security of the Company, (ii) any security convertible, with or without consideration, into any Common Stock, Preferred Stock preferred stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock preferred stock or other security, security or (iv) any such warrant or right.

Subsequent Offerings. The Each Major Investor and Xxxxxxxx Xxxxxxx (the “Founder”) shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.6 hereof. The Investor's Each Major Investor and Founder’s pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus the number of shares of the Company’s Common Stock (and the number of including all shares of Common Stock issued or issuable upon the conversion of any Equity Securitiesthe Shares) previously purchased pursuant to this Article 9, held by the which such Major Investor or any transferee pursuant Founder is deemed to Section 11.5, be a holder immediately prior to the issuance of such Equity Securities to (b) the total number of shares of the Company's ’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities the Shares or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities. The term "“Equity Securities" ” shall mean (i) any Common Stock, Preferred Stock or other equity security of the Company, (ii) any security convertible, with or without consideration, into any Common Stock, Preferred Stock or other security of the Company (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, equity security of the Company or (iv) any such warrant or rightright of the Company.

Subsequent Offerings. The Each Major Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 9.6 4.6 hereof. The Each Major Investor's ’s pro rata share is equal to the ratio of (a) the number of Shares purchased pursuant to Article 2, plus the number of shares of the Company’s Common Stock (and the number of including all shares of Common Stock issued or issuable upon the conversion of any the Shares) of which such Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities) previously purchased pursuant to this Article 9, held by the Investor or any transferee pursuant to Section 11.5, Securities to (b) the total number of shares of the Company's ’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon the conversion of any Equity Securities or the Shares or, to the extent not included within the meaning of “Shares,” upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities; provided, however, that if the price per share of such Equity Securities is less than $5.06 per share (as adjusted for stock splits, dividends, recapitalizations and the like after the date hereof), each Major Investor’s pro rata share shall be equal to the ratio of (a) the number of shares of the Company’s Series Preferred (as defined in the Charter) of which such Major Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities to (b) the total number of shares of the Company’s issued and outstanding Series Preferred (as defined in the Charter) immediately prior to the issuance of such Equity Securities. The term "“Equity Securities" ” shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertible, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option, warrant or other right option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, security or (iv) any such warrant or right.