Common use of Right to Participate Clause in Contracts

Right to Participate. The Buyer will have a right to participate, on the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities or other securities that are convertible into or exchangeable for any of the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction. For any such transaction during such period, the Company shall give at least four Business Days advance written notice to the Buyer prior to any offer or sale of any of the Company's securities in such transaction by providing to the Buyer a term sheet which (A) contains all significant business terms of such proposed transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share of such securities which are the subject of such proposed transaction for the same consideration and on the same terms and conditions as contemplated for sales to third parties in such transaction (or such lesser portion thereof as specified by the Buyer). If the Buyer elects to exercise its rights hereunder for a particular transaction, it shall deliver written notice to the Company within four Business Days following receipt from the Company of the notice and term sheet meeting the requirements of this Section 5(j), which notice from the Buyer shall be conditional upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transaction. If, subsequent to the Company giving notice to the Buyer hereunder but prior to any of (i) the Buyer exercising its right to participate, (ii) the expiration of the four Business Day period without response from the Buyer or (iii) the rejection of such offer for such financing by the Buyer, the terms and conditions of the proposed sale to third parties in such transaction are changed from those disclosed in the term sheet provided to the Buyer, the Company shall be required to provide a new notice and term sheet meeting the requirements of this Section 5(j), reflecting such revised terms, to the Buyer hereunder and the Buyer shall have the right, which must be exercised within four Business Days of the date the Buyer receives such new notice and such revised term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If the Buyer does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage in such proposed transaction with the Company, then the Company may proceed with such proposed transaction on the same terms and conditions as noticed to the Buyer (assuming the Buyer has consented to the transaction, if required, pursuant to Section 5(n) and such transaction does not violate any other term or provision of the Transaction Documents), provided that if such proposed transaction is not consummated within 75 days following the Company’s notice hereunder, then the rights hereunder shall again be afforded to the Buyer for such proposed transaction. The rights and obligations of this Section 5(j) shall in no way limit or restrict the other rights of the Buyer pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply in respect of an Exempt Issuance.

Right to Participate. The Buyer will have a right Employee may elect to participate, on participate in the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities sale or other securities that are convertible into or exchangeable for any of Transfer described in the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction. For any such transaction during such period, the Company shall give at least four Business Days advance Sale Notice by giving written notice to the Buyer prior to any offer or sale of any of applicable Investors and the Company's securities in such transaction by providing Company within 15 days after the Company has given the related Sale Notice to the Buyer a term sheet which (A) contains all significant business terms of such proposed Employee. If the Employee elects to participate, the Employee will be entitled to sell in the contemplated transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share of such securities which are the subject of such proposed transaction for the same consideration price and on the same terms and conditions as contemplated for sales to third parties set forth in such transaction (or such lesser portion thereof as specified by the Buyer). If the Buyer elects to exercise its rights hereunder for a particular transactionSale Notice, it shall deliver written notice an amount of Shares equal to the Company within four Business Days following receipt from the Company of the notice and term sheet meeting the requirements of this Section 5(j), which notice from the Buyer shall be conditional upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transaction. If, subsequent to the Company giving notice to the Buyer hereunder but prior to any product of (i) the Buyer exercising its right quotient determined by dividing (A) the percentage of the Company’s then outstanding Common Stock represented by the Shares then held by the Employee by (B) the aggregate percentage of the Company’s then outstanding Common Stock represented by the Common Stock then held by the Investor(s) participating in the sale or other Transfer described in the Sale Notice and all holders of Common Stock electing to participateparticipate in such sale, and (ii) the expiration number of shares of Common Stock the prospective transferee has agreed to purchase in the contemplated transaction. Notwithstanding anything to the contrary in any Sale Notice, (i) the Employee shall agree to make customary representations, and shall agree to customary covenants, indemnities and agreements regarding the Employee’s Shares, so long as they are made severally and not jointly; (ii) any general indemnity given by any Investor, applicable to liabilities not specific to such Investor, to the transferee in connection with such sale shall be apportioned among the Employee and all other Persons participating in such sale or Transfer on a pro rata basis, based on the consideration received by each such Person in respect of his, her or its Shares to be sold or Transferred and shall be subject to all of the four Business Day period without response from the Buyer or same limits and exclusions as shall be applicable to such Investor, (iii) the rejection of such offer for such financing any indemnity given by the BuyerEmployee shall not exceed the Employee’s net proceeds from the sale (or such lower limit as is applicable to such Investor), the terms and conditions (iv) any representation relating specifically to a Person and/or his, her or its ownership of the proposed Shares to be sold or Transferred shall be made only by such Person. The fees and expenses incurred in connection with such sale to third parties or Transfer and for the benefit of all Persons participating in such transaction are changed from those disclosed sale or Transfer (it being understood that costs incurred by or on behalf of a Person for his, her or its sole benefit will not be considered to be for the benefit of all Persons participating in the term sheet provided to the Buyer, the Company shall be required to provide a new notice and term sheet meeting the requirements of this Section 5(jsuch sale or Transfer), reflecting such revised terms, to the Buyer hereunder extent not paid or reimbursed by the Company or the transferee, shall be shared by the Employee and the Buyer shall have the right, which must be exercised within four Business Days of the date the Buyer receives such new notice and such revised term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If the Buyer does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage all other Persons participating in such proposed transaction with the Companysale or Transfer on a pro rata basis, then the Company may proceed with such proposed transaction based on the same terms and conditions as noticed to the Buyer (assuming the Buyer has consented to the transaction, if required, pursuant to Section 5(n) and consideration received by each such transaction does not violate any other term or provision of the Transaction Documents), provided that if such proposed transaction is not consummated within 75 days following the Company’s notice hereunder, then the rights hereunder shall again be afforded to the Buyer for such proposed transaction. The rights and obligations of this Section 5(j) shall in no way limit or restrict the other rights of the Buyer pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply Person in respect of an Exempt Issuanceits Shares to be sold or Transferred; provided that the Employee shall not be obligated to make any out-of-pocket expenditure in respect of such fees or expenses other than de minimis expenditures other than as a deduction from actual proceeds to the Employee from the Transfer.

Right to Participate. The So long as the Preferred Shares remain outstanding, the Buyer will have a right to participate, participate in any sales of any of the Company’s securities in a capital raising transaction on the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities or other securities that are convertible into or exchangeable for any of the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction. For any such transaction during During such period, the Company shall give at least four ten Business Days advance written notice to the Buyer prior to any non-public offer or sale of any of the Company's securities ’s capital stock or any Common Stock Equivalents in such a capital raising transaction by providing to the Buyer a comprehensive term sheet which (A) contains containing all significant business terms of such a proposed transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share 20 percent of such securities which are the subject of such proposed transaction for the same consideration and on the same terms and conditions as contemplated for sales to third parties in such transaction third-party sale (or such lesser portion thereof as specified by the Buyer). If the Buyer elects to exercise its rights hereunder for a particular transaction, it shall must deliver written notice to the Company within four five Business Days following receipt from the Company of the notice and comprehensive term sheet meeting from the requirements of this Section 5(j)Company, which notice from the Buyer shall be conditional contingent upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transactionCompany. If, subsequent to the Company giving notice to the Buyer hereunder but prior to any of (i) the Buyer exercising its right to participate, participate (ii) or the expiration of the four Business Day five-day period without response from the Buyer or (iii) the rejection of such offer for such financing by the Buyer), the terms and conditions of the proposed third-party sale to third parties in such transaction are changed in any material manner from those that disclosed in the comprehensive term sheet provided to the Buyer, the Company shall be required to provide a new notice and comprehensive term sheet meeting the requirements of this Section 5(j), reflecting such revised terms, terms to the Buyer hereunder and the Buyer shall have the right, which must be exercised within four five Business Days of the date the Buyer receives such new notice and such revised comprehensive term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If In the event the Buyer does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage in such proposed transaction with the Company, then the Company may proceed with such proposed transaction on the same terms and conditions as noticed to the Buyer (assuming the Buyer has consented to the transaction, if required, pursuant to Section 5(n5(i) and of this Agreement) with the Buyer if it has elected to participate in such transaction does not violate any other term or provision of the Transaction Documents)proposed transaction, provided that if such proposed transaction is not consummated within 75 60 days following the Company’s notice hereunder, then the rights right of first refusal hereunder shall again be afforded apply to the Buyer for such proposed transaction. The rights and obligations of this Section 5(j) shall in no way limit or restrict diminish the other rights of the Buyer pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply in respect of an Exempt Issuance.

Right to Participate. The Buyer So long as the Note remains outstanding, the Purchaser will have a right to participate, participate in any sales of any of the Company's securities in a capital raising transaction on the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities or other securities that are convertible into or exchangeable for any of the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction6.3. For any such transaction during During such period, the Company shall give at least four ten Business Days advance written notice to the Buyer Purchaser prior to any non-public offer or sale of any of the Company's securities capital stock or any Common Stock Equivalents in such a capital raising transaction by providing to the Buyer Purchaser a comprehensive term sheet which (A) contains containing all significant business terms of such a proposed transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer Purchaser shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share 25 percent of such securities which are the subject of such proposed transaction for the same consideration and on the same terms and conditions as contemplated for sales to third parties in such transaction third-party sale (or such lesser portion thereof as specified by the BuyerPurchaser). If the Buyer Purchaser elects to exercise its rights hereunder for a particular transaction, it shall must deliver written notice to the Company within four five (5) Business Days following receipt from the Company of the notice and comprehensive term sheet meeting from the requirements of this Section 5(j)Company, which notice from the Buyer Purchaser shall be conditional contingent upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transactionCompany. If, subsequent to the Company giving notice to the Buyer Purchaser hereunder but prior to any of (i) the Buyer Purchaser exercising its right to participate, participate (ii) or the expiration of the four Business Day five-day period without response from the Buyer Purchaser or (iii) the rejection of such offer for such financing by the BuyerPurchaser), the terms and conditions of the proposed third-party sale to third parties in such transaction are changed from those that disclosed in the comprehensive term sheet provided to the BuyerPurchaser, the Company shall be required to provide a new notice and comprehensive term sheet meeting the requirements of this Section 5(j), reflecting such revised terms, terms to the Buyer Purchaser hereunder and the Buyer Purchaser shall have the right, which must be exercised within four five (5) Business Days of the date the Buyer receives such new notice and such revised comprehensive term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If In the Buyer event the Purchaser does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage in such proposed transaction with the Company, then the Company may proceed with such proposed transaction on the same terms and conditions as noticed to the Buyer Purchaser (assuming the Buyer Purchaser has consented to the transaction, if required, pursuant to Section 5(n6.2 of this Agreement) and with the Purchaser if it has elected to participate in such transaction does not violate any other term or provision of the Transaction Documents)proposed transaction, provided that if such proposed transaction is not consummated within 75 60 days following the Company’s 's notice hereunder, then the rights right of first refusal hereunder shall again be afforded apply to the Buyer Purchaser for such proposed transaction. The rights and obligations of under this Section 5(j) 6.3 shall in no way limit or restrict diminish the other rights of the Buyer Purchaser pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply in respect of an Exempt Issuance6.

Right to Participate. The Buyer Purchaser will have a right to participate, on the terms and conditions set forth in this Section 5(j)6.3, in all sales by the Company of any of the Company’s equity securities or other securities that are convertible into or exchangeable for any of the Company’s equity 's securities in each a capital raising transaction, if any, transaction that occurs at any time when occur within two years after the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part)Closing Date, other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic IssuanceAct; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in a particular such transaction are “"accredited investors,” " as defined in Regulation D, then the Buyer Purchaser must be an accredited investor in order to purchase securities in such transactiontransactions. For any such transaction during such period, the Company shall give at least four ten Business Days advance written notice to the Buyer Purchaser prior to any offer or sale of any of the Company's securities in such transaction by providing to the Buyer Purchaser a term sheet which (A1) contains all significant business terms of such proposed transaction, (B2) is sufficiently detailed so as to reasonably permit the Buyer Purchaser the opportunity to determine whether or not to exercise its rights under this Section 5(j) 6.3 and (C3) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer Purchaser shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share of such securities which are the subject of such proposed transaction for the same consideration and on the same terms and conditions as contemplated for sales to third parties in such transaction (or such lesser portion thereof as specified by the BuyerPurchaser). If the Buyer Purchaser elects to exercise its rights hereunder for a particular transaction, it shall must deliver written notice to the Company within four five Business Days following receipt from the Company of the notice and term sheet meeting the requirements of this Section 5(j)6.3, which notice from the Buyer Purchaser shall be conditional upon (A1) the Buyer’s Purchaser's receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, final definitive documents for such transaction to the Buyer Purchaser at or before the time the Company gives such notice of such transaction to the BuyerPurchaser, and (B2) the satisfaction of the other conditions precedent to the obligations of buyers purchasers generally in such transaction to complete such transaction. If, subsequent to the Company giving notice to the Buyer Purchaser hereunder but prior to any of (i) the Buyer Purchaser exercising its right to participate, participate (ii) or the expiration of the four five Business Day period without response from the Buyer Purchaser or (iii) the rejection of such offer for such financing by the BuyerPurchaser), the terms and conditions of the proposed sale sales to third parties in such transaction are changed from those disclosed in the term sheet provided to the BuyerPurchaser, the Company shall be required to provide a new notice and term sheet meeting the requirements of this Section 5(j)6.3, reflecting such revised terms, to the Buyer Purchaser hereunder and the Buyer Purchaser shall have the right, which must be exercised within four five Business Days of the date the Buyer receives such new notice and such revised term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If the Buyer Purchaser does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage in such proposed transaction with the Company, then the Company may proceed with such proposed transaction on the same terms and conditions as noticed to the Buyer Purchaser (assuming the Buyer Purchaser has consented to the transaction, if required, pursuant to Section 5(n) 6.2 and such transaction does not violate any other term or provision of the Transaction Documents)) with the Purchaser if it has elected to participate in such proposed transaction, provided that if such proposed transaction is not consummated within 75 days following the Company’s 's notice hereunder, then the rights hereunder shall again be afforded to the Buyer Purchaser for such proposed transaction. The rights and obligations of this Section 5(j) 6.3 shall in no way limit or restrict the other rights of the Buyer Purchaser pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply in respect of an Exempt Issuance6.

Right to Participate. The Buyer So long as the Note remains outstanding, the Purchaser will have a right to participate, participate in any sales of any of the Company's securities in a capital raising transaction on the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities or other securities that are convertible into or exchangeable for any of the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction6.3. For any such transaction during During such period, the Company shall give at least four ten Business Days advance written notice to the Buyer Purchaser prior to any non-public offer or sale of any of the Company's securities capital stock or any Common Stock Equivalents in such a capital raising transaction by providing to the Buyer Purchaser a comprehensive term sheet which (A) contains containing all significant business terms of such a proposed transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer Purchaser shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share 15 percent of such securities which are the subject of such proposed transaction for the same consideration and on the same terms and conditions as contemplated for sales to third parties in such transaction third-party sale (or such lesser portion thereof as specified by the BuyerPurchaser). If the Buyer Purchaser elects to exercise its rights hereunder for a particular transaction, it shall must deliver written notice to the Company within four five (5) Business Days following receipt from the Company of the notice and comprehensive term sheet meeting from the requirements of this Section 5(j)Company, which notice from the Buyer Purchaser shall be conditional contingent upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transactionCompany. If, subsequent to the Company giving notice to the Buyer Purchaser hereunder but prior to any of (i) the Buyer Purchaser exercising its right to participate, participate (ii) or the expiration of the four Business Day five-day period without response from the Buyer Purchaser or (iii) the rejection of such offer for such financing by the BuyerPurchaser), the terms and conditions of the proposed third-party sale to third parties in such transaction are changed from those that disclosed in the comprehensive term sheet provided to the BuyerPurchaser, the Company shall be required to provide a new notice and comprehensive term sheet meeting the requirements of this Section 5(j), reflecting such revised terms, terms to the Buyer Purchaser hereunder and the Buyer Purchaser shall have the right, which must be exercised within four five (5) Business Days of the date the Buyer receives such new notice and such revised comprehensive term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If In the Buyer event the Purchaser does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage in such proposed transaction with the Company, then the Company may proceed with such proposed transaction on the same terms and conditions as noticed to the Buyer Purchaser (assuming the Buyer Purchaser has consented to the transaction, if required, pursuant to Section 5(n6.2 of this Agreement) and with the Purchaser if it has elected to participate in such transaction does not violate any other term or provision of the Transaction Documents)proposed transaction, provided that if such proposed transaction is not consummated within 75 60 days following the Company’s 's notice hereunder, then the rights right of first refusal hereunder shall again be afforded apply to the Buyer Purchaser for such proposed transaction. The rights and obligations of this Section 5(j) 6.3 shall in no way limit or restrict diminish the other rights of the Buyer Purchaser pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply in respect of an Exempt Issuance6.

Right to Participate. The Buyer So long as the Note remains outstanding, the Purchaser will have a right to participate, participate in any sales of any of the Company's securities in a capital raising transaction on the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities or other securities that are convertible into or exchangeable for any of the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction6.3. For any such transaction during During such period, the Company shall give at least four ten Business Days advance written notice to the Buyer Purchaser prior to any non-public offer or sale of any of the Company's securities capital stock or any Common Stock Equivalents in such a capital raising transaction by providing to the Buyer Purchaser a comprehensive term sheet which (A) contains containing all significant business terms of such a proposed transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer Purchaser shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share [17.5% FOR ALEXANDRA] [2.5% FOR ALPHA] [7.5% FOR BRISTOL] [5% FOR CRESCENT] [10% FOR CRESTVIEW] [10% FOR OMICRON] [17.5% FOR PALISADES] [30% FOR SATELLITE] percent of such securities which are the subject of such proposed transaction for the same consideration and on the same terms and conditions as contemplated for sales to third parties in such transaction third-party sale (or such lesser portion thereof as specified by the BuyerPurchaser). If the Buyer Purchaser elects to exercise its rights hereunder for a particular transaction, it shall must deliver written notice to the Company within four five Business Days following receipt from the Company of the notice and comprehensive term sheet meeting from the requirements of this Section 5(j)Company, which notice from the Buyer Purchaser shall be conditional contingent upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transactionCompany. If, subsequent to the Company giving notice to the Buyer Purchaser hereunder but prior to any of (i) the Buyer Purchaser exercising its right to participate, participate (ii) or the expiration of the four Business Day five-day period without response from the Buyer Purchaser or (iii) the rejection of such offer for such financing by the BuyerPurchaser), the terms and conditions of the proposed third-party sale to third parties in such transaction are changed from those that disclosed in the comprehensive term sheet provided to the BuyerPurchaser, the Company shall be required to provide a new notice and comprehensive term sheet meeting the requirements of this Section 5(j), reflecting such revised terms, terms to the Buyer Purchaser hereunder and the Buyer Purchaser shall have the right, which must be exercised within four five Business Days of the date the Buyer receives such new notice and such revised comprehensive term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If In the Buyer event the Purchaser does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage in such proposed transaction with the Company, then the Company may proceed with such proposed transaction on the same terms and conditions as noticed to the Buyer Purchaser (assuming the Buyer Purchaser has consented to the transaction, if required, pursuant to Section 5(n6.2 of this Agreement) and with the Purchaser if it has elected to participate in such transaction does not violate any other term or provision of the Transaction Documents)proposed transaction, provided PROVIDED that if such proposed transaction is not consummated within 75 60 days following the Company’s 's notice hereunder, then the rights right of first refusal hereunder shall again be afforded apply to the Buyer Purchaser for such proposed transaction. The rights and obligations of this Section 5(j) 6.3 shall in no way limit or restrict diminish the other rights of the Buyer Purchaser pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply in respect of an Exempt Issuance6.

Right to Participate. The Buyer Purchaser will have a right to participate, on the terms and conditions set forth in this Section 5(j)6.3, in all sales by the Company of any (i) shares of Common Stock, (ii) any other equity security of the Company’s equity securities or other securities that are , including without limitation, preferred shares, (iii) any debt security of the Company which by its terms is convertible into or exchangeable for any equity security of the Company’s , (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity securities security or any such debt security of the Company, in each a capital raising transaction, if any, transaction that occurs at any time when occur within one year after the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part)Closing Date, other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic IssuanceAct; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in a particular such transaction are “accredited investors,” as defined in Regulation D, or “QIBs”, as defined in Rule 144A under the 1933 Act, as the case may be, then the Buyer Purchaser must be an accredited investor or QIB, as the case may be, in order to purchase securities in such transactiontransactions. For Subject to Section 6.15, for any such transaction during such period, the Company shall give at least four five Business Days advance written notice to the Buyer Purchaser prior to any offer or sale of any of the Company's ’s securities in such transaction by providing to the Buyer Purchaser a term sheet which (A1) contains all significant business terms of such proposed transaction, (B2) is sufficiently detailed so as to reasonably permit the Buyer Purchaser the opportunity to determine whether or not to exercise its rights under this Section 5(j) 6.3 and (C3) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer Unless the Purchaser shall have refused to receive such term sheet pursuant to Section 6.15, the Purchaser shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share of such securities which are the subject of such proposed transaction for the same consideration and on the same terms and conditions as contemplated for sales to third parties in such transaction (or such lesser portion thereof as specified by the BuyerPurchaser). If the Buyer Purchaser elects to exercise its rights hereunder for a particular transaction, it shall must deliver written notice to the Company within four three Business Days following receipt from the Company of the notice and term sheet meeting the requirements of this Section 5(j)6.3, which notice from the Buyer Purchaser shall be conditional upon (A1) the BuyerPurchaser’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, final definitive documents for such transaction to the Buyer Purchaser at or before the time the Company gives such notice of such transaction to the BuyerPurchaser, and (B2) the satisfaction of the other conditions precedent to the obligations of buyers purchasers generally in such transaction to complete such transaction. If, subsequent to the Company giving notice to the Buyer Purchaser hereunder but prior to any of (i) the Buyer Purchaser exercising its right to participate, participate (ii) or the expiration of the four three Business Day period without response from the Buyer Purchaser or (iii) the rejection of such offer for such financing by the BuyerPurchaser), the terms and conditions of the proposed sale sales to third parties in such transaction are changed from those disclosed in the term sheet provided to the BuyerPurchaser, the Company shall be required to provide a new notice and term sheet meeting the requirements of this Section 5(j)6.3, reflecting such revised terms, to the Buyer Purchaser hereunder and the Buyer Purchaser shall have the right, which must be exercised within four three Business Days of the date the Buyer receives such new notice and such revised term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If the Buyer Purchaser does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage in such proposed transaction with the Company, then the Company may proceed with such proposed transaction on the same terms and conditions as noticed to the Buyer Purchaser (assuming the Buyer Purchaser has consented to the transaction, if required, pursuant to Section 5(n6.2(a) and such transaction does not violate any other term or provision of the Transaction Documents)) with the Purchaser if it has elected to participate in such proposed transaction, provided that if such proposed transaction is not consummated within 75 days following the Company’s notice hereunder, then the rights hereunder shall again be afforded to the Buyer Purchaser for such proposed transaction. The rights and obligations of this Section 5(j) 6.3 shall in no way limit or restrict the other rights of the Buyer Purchaser pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply in respect of an Exempt Issuance6.

Right to Participate. The Buyer So long as any of the Shares remain outstanding, the Purchaser will have a right to participate, participate in any sales of any of the Company's securities in a capital raising transaction on the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities or other securities that are convertible into or exchangeable for any of the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction6.3. For any such transaction during During such period, the Company shall give at least four ten Business Days advance written notice to the Buyer Purchaser prior to any non-public offer or sale of any of the Company's securities capital stock or any Common Stock Equivalents in such a capital raising transaction by providing to the Buyer Purchaser a comprehensive term sheet which (A) contains containing all significant business terms of such a proposed transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer Purchaser shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share 25 percent of such securities which are the subject of such proposed transaction for the same consideration and on the same terms and conditions as contemplated for sales to third parties in such transaction third-party sale (or such lesser portion thereof as specified by the BuyerPurchaser). If the Buyer Purchaser elects to exercise its rights hereunder for a particular transaction, it shall must deliver written notice to the Company within four five (5) Business Days following receipt from the Company of the notice and comprehensive term sheet meeting from the requirements of this Section 5(j)Company, which notice from the Buyer Purchaser shall be conditional contingent upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transactionCompany. If, subsequent to the Company giving notice to the Buyer Purchaser hereunder but prior to any of (i) the Buyer Purchaser exercising its right to participate, participate (ii) or the expiration of the four Business Day five-day period without response from the Buyer Purchaser or (iii) the rejection of such offer for such financing by the BuyerPurchaser), the terms and conditions of the proposed third-party sale to third parties in such transaction are changed from those that disclosed in the comprehensive term sheet provided to the BuyerPurchaser, the Company shall be required to provide a new notice and comprehensive term sheet meeting the requirements of this Section 5(j), reflecting such revised terms, terms to the Buyer Purchaser hereunder and the Buyer Purchaser shall have the right, which must be exercised within four five (5) Business Days of the date the Buyer receives such new notice and such revised comprehensive term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If In the Buyer event the Purchaser does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage in such proposed transaction with the Company, then the Company may proceed with such proposed transaction on the same terms and conditions as noticed to the Buyer Purchaser (assuming the Buyer Purchaser has consented to the transaction, if required, pursuant to Section 5(n6.2 of this Agreement) and with the Purchaser if it has elected to participate in such transaction does not violate any other term or provision of the Transaction Documents)proposed transaction, provided that if such proposed transaction is not consummated within 75 60 days following the Company’s 's notice hereunder, then the rights right of first refusal hereunder shall again be afforded apply to the Buyer Purchaser for such proposed transaction. The rights and obligations of under this Section 5(j) 6.3 shall in no way limit or restrict diminish the other rights of the Buyer Purchaser pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply in respect of an Exempt Issuance6.

Right to Participate. The Buyer will have a right Seller and the Bank, jointly and severally, represent and warrant to participate, Purchaser that all loan participations between the Bank and any of Seller's affiliates ("Loan Participations") which are reflected on the terms Bank's balance sheets as of September 30, 2003 and conditions set forth the date of this Agreement are disclosed by borrower name, loan amount, and maturity date in Schedule 5.4 of Seller's Disclosure Memorandum. Seller and Bank recognize that Purchaser and CCB are purchasing rights in the Loan Participations in connection with this Agreement, and these rights are material to Purchaser's decision to purchase the Bank. In recognition of these rights, Seller hereby agrees that except as provided in this Section 5(j)neither Seller nor any of its agents or affiliates will take any act, or omit to take any act, that would result in all sales by the Company of Bank or the Resulting Bank losing its pro rata portion of, or any rights in, any of the Company’s equity securities or other securities that are convertible into or exchangeable for Loan Participations. Except as provided in this Section, neither Seller nor any of its affiliates will refinance, modify, renew, amend, replace with additional or new credit facilities or otherwise change the Company’s equity securities Bank's rights in each capital raising transaction, if any, that occurs at any time when the Note, Loan Participations except as and to the extent permitted in the participation agreement. In the event Seller or any instrument issued upon transfer of its affiliates desire to refinance, modify, renew, amend, replace with additional or split up thereofnew credit facilities or otherwise change the Bank's or the Resulting Bank's rights in a Loan Participation, remains outstanding Seller shall first submit a written offer (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under "Offer") to Purchaser for the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction. For any such transaction during such period, the Company shall give at least four Business Days advance written notice to the Buyer prior to any offer or sale of any of the Company's securities in such transaction by providing to the Buyer a term sheet which (A) contains all significant business terms of such proposed transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer shall have the right Resulting Bank to participate in such proposed transaction the new lending arrangement. The Offer shall (i) provide the name and to purchase its Pro Rata Share address of such securities which are the subject of such proposed transaction existing borrower(s) and identify the affected Loan Participation, (ii) provide sufficient documentation for the Resulting Bank to perform an independent credit analysis, (iii) permit the Resulting Bank to participate in the new lending arrangement at the same consideration or greater percentage as the Resulting Bank participates in the affected Loan Participation, and on (iv) permit the Resulting Bank to participate in the new lending arrangement under the same terms and conditions as contemplated for sales offered to third parties in such transaction (affiliates of Seller. For purposes of this Section, the date on which Seller or such lesser portion thereof as specified Seller's affiliates deliver(s) the Offer shall be deemed the "Offer Date." Purchaser shall have the option, exercisable by the Buyer). If the Buyer elects to exercise its rights hereunder for a particular transaction, it shall deliver written notice given to the Company Seller within four Business Days following receipt from the Company fifteen (15) days of the notice and term sheet meeting Offer Date, to participate in the requirements of this Section 5(j), which notice from the Buyer shall be conditional upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transaction. If, subsequent to the Company giving notice to the Buyer hereunder but prior to any of (i) the Buyer exercising its right to participate, (ii) the expiration of the four Business Day period without response from the Buyer or (iii) the rejection of such offer for such financing by the Buyer, new lending arrangement under the terms and conditions of specified in the proposed sale Offer. Purchaser, in its sole discretion, may reject such Offer, in which case, Purchaser shall have no further liability with respect to, or obligation to third parties participate in, such loan, nor shall Seller or its affiliates have any further liability or obligation to Purchaser and its affiliates under this Agreement to offer or permit participation in such transaction are changed from those disclosed in the term sheet provided to the Buyer, the Company shall be required to provide a new notice and term sheet meeting the requirements of this Section 5(j), reflecting such revised terms, to the Buyer hereunder and the Buyer shall have the right, which must be exercised within four Business Days of the date the Buyer receives such new notice and such revised term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If the Buyer does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage in such proposed transaction with the Company, then the Company may proceed with such proposed transaction on the same terms and conditions as noticed to the Buyer (assuming the Buyer has consented to the transaction, if required, pursuant to Section 5(n) and such transaction does not violate any other term or provision of the Transaction Documents), provided that if such proposed transaction is not consummated within 75 days following the Company’s notice hereunder, then the rights hereunder shall again be afforded to the Buyer for such proposed transaction. The rights and obligations of this Section 5(j) shall in no way limit or restrict the other rights of the Buyer pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply in respect of an Exempt Issuanceloan.

Right to Participate. The So long as the Preferred Shares remain outstanding, and to the extent Alexandra Global Master Fund Ltd. does not exercise its rights of first refusal, each Buyer will have a right to participate, participate in any sales of any of the Company’s securities in a capital raising transaction on the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities or other securities that are convertible into or exchangeable for any of the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction. For any such transaction during During such period, the Company shall give at least four ten Business Days advance written notice to the each Buyer prior to any non-public offer or sale of any of the Company's securities ’s capital stock or any Common Stock Equivalents in such a capital raising transaction by providing to the each Buyer a comprehensive term sheet which (A) contains containing all significant business terms of such a proposed transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer Buyers shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share an aggregate of 20 percent of such securities (the percentage of such aggregate amount that may be purchase by each Buyer being determined based upon the percentage of Preferred Shares then held by each Buyer) which are the subject of such proposed transaction for the same consideration and on the same terms and conditions as contemplated for sales to third parties in such transaction third-party sale (or such lesser portion thereof as specified by the BuyerBuyers). If the any Buyer elects to exercise its rights hereunder for a particular transaction, it shall must deliver written notice to the Company within four ten Business Days following receipt from the Company of the notice and comprehensive term sheet meeting from the requirements of this Section 5(j)Company, which notice from the such Buyer shall be conditional contingent upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transactionCompany. If, subsequent to the Company giving notice to the each Buyer hereunder but prior to any of (i) the Buyer exercising its right to participate, participate (ii) or the expiration of the four Business Day ten-day period without response from the any Buyer or (iii) the rejection of such offer for such financing by the Buyerall Buyers), the terms and conditions of the proposed third-party sale to third parties in such transaction are changed in any material manner from those that disclosed in the comprehensive term sheet provided to the each Buyer, the Company shall be required to provide a new notice and comprehensive term sheet meeting the requirements of this Section 5(j), reflecting such revised terms, terms to the each Buyer hereunder and the each Buyer shall have the right, which must be exercised within four ten Business Days of the date the Buyer receives such new notice and such revised comprehensive term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If In the Buyer does event Buyers do not exercise its their rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines decline to engage in such proposed transaction with the Company, then the Company may proceed with such proposed transaction on the same terms and conditions as noticed to the Buyer Buyers (assuming the Buyer has Buyers have consented to the transaction, if required, pursuant to Section 5(n5(i) and such transaction does not violate any other term or provision of the Transaction Documentsthis Agreement), provided that if such proposed transaction is not consummated within 75 60 days following the Company’s notice hereunder, then the rights right of first refusal hereunder shall again be afforded apply to the Buyer Buyers for such proposed transaction. The rights and obligations of this Section 5(j) shall in no way limit or restrict diminish the other rights of the Buyer Buyers pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply in respect of an Exempt Issuance.

Right to Participate. The Buyer will have a right Employee may elect to participate, on participate in the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities sale or other securities that are convertible into or exchangeable for any of transfer described in the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction. For any such transaction during such period, the Company shall give at least four Business Days advance Sale Notice by giving written notice to the Buyer prior to any offer or sale of any of applicable Investors and the Company's securities in such transaction by providing Company within 15 days after the Company has given the related Sale Notice to the Buyer a term sheet which (A) contains all significant business terms of such proposed Employee. If the Employee elects to participate, the Employee will be entitled to sell in the contemplated transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share of such securities which are the subject of such proposed transaction for the same consideration price and on the same terms and conditions as contemplated for sales to third parties set forth in such transaction (or such lesser portion thereof as specified by the Buyer). If the Buyer elects to exercise its rights hereunder for a particular transactionSale Notice, it shall deliver written notice an amount of Shares equal to the Company within four Business Days following receipt from the Company of the notice and term sheet meeting the requirements of this Section 5(j), which notice from the Buyer shall be conditional upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transaction. If, subsequent to the Company giving notice to the Buyer hereunder but prior to any product of (i) the Buyer exercising its right quotient determined by dividing (A) the percentage of the Company’s then outstanding Common Stock represented by the Shares then held by the Employee by (B) the aggregate percentage of the Company’s then outstanding Common Stock represented by the Common Stock then held by the Investor(s) participating in the sale or other transfer described in the Sale Notice and all holders of Common Stock electing to participate, participate in such sale and (ii) the expiration number of shares of Common Stock the four Business Day period without response prospective transferee has agreed to purchase in the contemplated transaction. Notwithstanding anything to the contrary in any Sale Notice, (i) the Employee shall agree to make customary representations, and shall agree to customary covenants, indemnities and agreements, so long as they are made severally and not jointly; provided, that the Employee shall not be subject to any restrictive covenant to the extent such covenant differs from the Buyer applicable restrictive covenant provided in the Employment Agreement; (ii) any general indemnity given by any Investor, applicable to liabilities not specific to such Investor, to the transferee in connection with such sale shall be apportioned among the Employee and all other Persons participating in such sale or Transfer on a pro rata basis, based on the consideration received by each such Person in respect of his, her or its Shares to be sold or Transferred, (iii) the rejection of such offer for such financing any indemnity given by the BuyerEmployee shall not exceed the Employee’s net proceeds from the sale, the terms and conditions (iv) any representation relating specifically to a Person and/or his, her or its ownership of the proposed Shares to be sold or Transferred shall be made only by such Person. The fees and expenses incurred in connection with such sale to third parties or Transfer and for the benefit of all Persons participating in such transaction are changed from those disclosed sale or Transfer (it being understood that costs incurred by or on behalf of a Person for his, her or its sole benefit will not be considered to be for the benefit of all Persons participating in the term sheet provided to the Buyer, the Company shall be required to provide a new notice and term sheet meeting the requirements of this Section 5(jsuch sale or Transfer), reflecting such revised terms, to the Buyer hereunder extent not paid or reimbursed by the Company or the transferee, shall be shared by the Employee and the Buyer shall have the right, which must be exercised within four Business Days of the date the Buyer receives such new notice and such revised term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If the Buyer does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage all other Persons participating in such proposed transaction with the Companysale or Transfer on a pro rata basis, then the Company may proceed with such proposed transaction based on the same terms and conditions as noticed to the Buyer (assuming the Buyer has consented to the transaction, if required, pursuant to Section 5(n) and consideration received by each such transaction does not violate any other term or provision of the Transaction Documents), provided that if such proposed transaction is not consummated within 75 days following the Company’s notice hereunder, then the rights hereunder shall again be afforded to the Buyer for such proposed transaction. The rights and obligations of this Section 5(j) shall in no way limit or restrict the other rights of the Buyer pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply Person in respect of an Exempt Issuanceits Shares to be sold or Transferred; provided that no such Person shall be obligated to make any out-of-pocket expenditure in respect of such fees or expenses prior to the consummation of such sale or Transfer (excluding de minimis expenditures).

Right to Participate. The Buyer will have a right Jonas Investor may elect to participate, on participate in the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities sale or other securities that are convertible into or exchangeable for any of Transfer described in the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction. For any such transaction during such period, the Company shall give at least four Business Days advance Sale Notice by giving written notice to the Buyer prior to any offer or sale of any of applicable Investors and the Company's securities in such transaction by providing Company within 15 days after the Company has given the related Sale Notice to the Buyer a term sheet which (A) contains all significant business terms of such proposed Jonas Investor. If the Jonas Investor elects to participate, the Jonas Investor will be entitled to sell in the contemplated transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share of such securities which are the subject of such proposed transaction for the same consideration price and on the same terms and conditions as contemplated for sales to third parties set forth in such transaction (or such lesser portion thereof as specified by the Buyer). If the Buyer elects to exercise its rights hereunder for a particular transactionSale Notice, it shall deliver written notice an amount of Shares equal to the Company within four Business Days following receipt from the Company of the notice and term sheet meeting the requirements of this Section 5(j), which notice from the Buyer shall be conditional upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transaction. If, subsequent to the Company giving notice to the Buyer hereunder but prior to any product of (i) the Buyer exercising its right quotient determined by dividing (A) the percentage of the Company’s then outstanding Common Stock represented by the Shares then held by the Jonas Investor by (B) the aggregate percentage of the Company’s then outstanding Common Stock represented by the Common Stock then held by the Investor(s) participating in the sale or other Transfer described in the Sale Notice and all holders of Common Stock electing to participateparticipate in such sale, and (ii) the expiration number of shares of Common Stock the four Business Day period without response from prospective transferee has agreed to purchase in the Buyer contemplated transaction. Notwithstanding anything to the contrary in any Sale Notice, (i) the Jonas Investor shall agree to make customary representations, and shall agree to customary covenants, indemnities and agreements, so long as they are made severally and not jointly; (ii) any general indemnity given by any Investor, applicable to liabilities not specific to such Investor, to the transferee in connection with such sale shall be apportioned among the Jonas Investor and all other Persons participating in such sale or Transfer on a pro rata basis, based on the consideration received by each such Person in respect of its Shares to be sold or Transferred, (iii) the rejection of such offer for such financing any indemnity given by the BuyerJonas Investor shall not exceed the limitations upon indemnity applicable to any Investor, the terms and conditions (iv) any representation relating specifically to a Person and/or his, her or its ownership of the proposed Shares to be sold or Transferred shall be made only by such Person. The fees and expenses incurred in connection with such sale to third parties or Transfer and for the benefit of all Persons participating in such transaction are changed from those disclosed sale or Transfer (it being understood that costs incurred by or on behalf of a Person for his, her or its sole benefit will not be considered to be for the benefit of all Persons participating in the term sheet provided to the Buyer, the Company shall be required to provide a new notice and term sheet meeting the requirements of this Section 5(jsuch sale or Transfer), reflecting such revised terms, to the Buyer hereunder extent not paid or reimbursed by the Company or the transferee, shall be shared by the Jonas Investor and the Buyer shall have the right, which must be exercised within four Business Days of the date the Buyer receives such new notice and such revised term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If the Buyer does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage all other Persons participating in such proposed transaction with the Companysale or Transfer on a pro rata basis, then the Company may proceed with such proposed transaction based on the same terms and conditions as noticed to the Buyer (assuming the Buyer has consented to the transaction, if required, pursuant to Section 5(n) and consideration received by each such transaction does not violate any other term or provision of the Transaction Documents), provided that if such proposed transaction is not consummated within 75 days following the Company’s notice hereunder, then the rights hereunder shall again be afforded to the Buyer for such proposed transaction. The rights and obligations of this Section 5(j) shall in no way limit or restrict the other rights of the Buyer pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply Person in respect of an Exempt Issuanceits Shares to be sold or Transferred; provided that no such Person shall be obligated to make any out-of-pocket expenditure in respect of such fees or expenses prior to the consummation of such sale or Transfer (excluding de minimis expenditures).

Right to Participate. The Buyer will have a right Employee may elect to participate, on participate in the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities sale or other securities that are convertible into or exchangeable for any of Transfer described in the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction. For any such transaction during such period, the Company shall give at least four Business Days advance Sale Notice by giving written notice to the Buyer prior to any offer or sale of any of applicable Investors and the Company's securities in such transaction by providing Company within 15 days after the Company has given the related Sale Notice to the Buyer a term sheet which (A) contains all significant business terms of such proposed Employee. If the Employee elects to participate, the Employee will be entitled to sell in the contemplated transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share of such securities which are the subject of such proposed transaction for the same consideration price and on the same terms and conditions as contemplated for sales to third parties set forth in such transaction (or such lesser portion thereof as specified by the Buyer). If the Buyer elects to exercise its rights hereunder for a particular transactionSale Notice, it shall deliver written notice an amount of Shares equal to the Company within four Business Days following receipt from the Company of the notice and term sheet meeting the requirements of this Section 5(j), which notice from the Buyer shall be conditional upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transaction. If, subsequent to the Company giving notice to the Buyer hereunder but prior to any product of (i) the Buyer exercising its right quotient determined by dividing (A) the percentage of the Company’s then outstanding Common Stock represented by the Shares then held by the Employee by (B) the aggregate percentage of the Company’s then outstanding Common Stock represented by the Common Stock then held by the Investor(s) participating in the sale or other Transfer described in the Sale Notice and all holders of Common Stock electing to participateparticipate in such sale, and (ii) the expiration number of shares of Common Stock the prospective transferee has agreed to purchase in the contemplated transaction. Notwithstanding anything to the contrary in any Sale Notice, (i) the Employee shall agree to make customary representations, and shall agree to customary covenants, indemnities and agreements regarding the Employee’s Shares, so long as they are made severally and not jointly; (ii) any general indemnity given by any Investor, applicable to liabilities not specific to such Investor, to the transferee in connection with such sale shall be apportioned among the Employee and all other Persons participating in such sale or Transfer on a pro rata basis, based on the consideration received by each such Person in respect of his, her or its shares to be sold or Transferred and shall be subject to all of the four Business Day period without response from the Buyer or same limits and exclusions as shall be applicable to such Investor, (iii) the rejection of such offer for such financing any indemnity given by the BuyerEmployee shall not exceed the Employee’s net proceeds from the sale (or such lower limit as is applicable to such Investor), the terms and conditions (iv) any representation relating specifically to a Person and/or his, her or its ownership of the proposed Shares to be sold or Transferred shall be made only by such Person. The fees and expenses incurred in connection with such sale to third parties or Transfer and for the benefit of all Persons participating in such transaction are changed from those disclosed sale or Transfer (it being understood that costs incurred by or on behalf of a Person for his, her or its sole benefit will not be considered to be for the benefit of all Persons participating in the term sheet provided to the Buyer, the Company shall be required to provide a new notice and term sheet meeting the requirements of this Section 5(jsuch sale or Transfer), reflecting such revised terms, to the Buyer hereunder extent not paid or reimbursed by the Company or the transferee, shall be shared by the Employee and the Buyer shall have the right, which must be exercised within four Business Days of the date the Buyer receives such new notice and such revised term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If the Buyer does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage all other Persons participating in such proposed transaction with the Companysale or Transfer on a pro rata basis, then the Company may proceed with such proposed transaction based on the same terms and conditions as noticed to the Buyer (assuming the Buyer has consented to the transaction, if required, pursuant to Section 5(n) and consideration received by each such transaction does not violate any other term or provision of the Transaction Documents), provided that if such proposed transaction is not consummated within 75 days following the Company’s notice hereunder, then the rights hereunder shall again be afforded to the Buyer for such proposed transaction. The rights and obligations of this Section 5(j) shall in no way limit or restrict the other rights of the Buyer pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply Person in respect of an Exempt Issuanceits Shares to be sold or Transferred; provided that the Employee shall not be obligated to make any out-of-pocket expenditure in respect of such fees or expenses other than de minimis expenditures other than as a deduction from actual proceeds to the Employee from the Transfer.

Right to Participate. The Buyer So long as the Note remains outstanding, the Purchaser will have a right to participate, participate in any sales of any of the Company's securities in a capital raising transaction on the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities or other securities that are convertible into or exchangeable for any of the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction6.3. For any such transaction during During such period, the Company shall give at least four ten (10) Business Days advance written notice to the Buyer Purchaser prior to any non-public offer or sale of any of the Company's securities capital stock or any Common Stock Equivalents in such a capital raising transaction by providing to the Buyer Purchaser a comprehensive term sheet which (A) contains containing all significant business terms of such a proposed transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer Purchaser shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share 25 percent of such securities which are the subject of such proposed transaction for the same consideration and on the same terms and conditions as contemplated for sales to third parties in such transaction third-party sale (or such lesser portion thereof as specified by the BuyerPurchaser). If the Buyer Purchaser elects to exercise its rights hereunder for a particular transaction, it shall must deliver written notice to the Company within four five (5) Business Days following receipt from the Company of the notice and comprehensive term sheet meeting from the requirements of this Section 5(j)Company, which notice from the Buyer Purchaser shall be conditional contingent upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transactionCompany. If, subsequent to the Company giving notice to the Buyer Purchaser hereunder but prior to any of (i) the Buyer Purchaser exercising its right to participate, participate (ii) or the expiration of the four Business Day five-day period without response from the Buyer Purchaser or (iii) the rejection of such offer for such financing by the BuyerPurchaser), the terms and conditions of the proposed third-party sale to third parties in such transaction are changed from those that disclosed in the comprehensive term sheet provided to the BuyerPurchaser, the Company shall be required to provide a new notice and comprehensive term sheet meeting the requirements of this Section 5(j), reflecting such revised terms, terms to the Buyer Purchaser hereunder and the Buyer Purchaser shall have the right, which must be exercised within four five (5) Business Days of the date the Buyer receives such new notice and such revised comprehensive term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If In the Buyer event the Purchaser does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage in such proposed transaction with the Company, then the Company may proceed with such proposed transaction on the same terms and conditions as noticed to the Buyer Purchaser (assuming the Buyer Purchaser has consented to the transaction, if required, pursuant to Section 5(n6.2 of this Agreement) and with the Purchaser if it has elected to participate in such transaction does not violate any other term or provision of the Transaction Documents)proposed transaction, provided that if such proposed transaction is not consummated within 75 60 days following the Company’s 's notice hereunder, then the rights right of first refusal hereunder shall again be afforded apply to the Buyer Purchaser for such proposed transaction. The rights and obligations of under this Section 5(j) 6.3 shall in no way limit or restrict diminish the other rights of the Buyer Purchaser pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply in respect of an Exempt Issuance6.

Right to Participate. The Buyer So long as the Note remains outstanding, Gryphon will have a right to participate, participate in any sales of any of the Company's securities in a capital raising transaction on the terms and conditions set forth in this Section 5(j), in all sales by the Company of any of the Company’s equity securities or other securities that are convertible into or exchangeable for any of the Company’s equity securities in each capital raising transaction, if any, that occurs at any time when the Note, or any instrument issued upon transfer or split up thereof, remains outstanding (in whole or in part), other than any such sale that is a public offering underwritten on a firm commitment basis and registered with the SEC under the 1933 Act and other than a Strategic Issuance; provided, however, that if under legal requirements applicable to a particular transaction the only Persons eligible to purchase securities in such transaction are “accredited investors,” as defined in Regulation D, then the Buyer must be an accredited investor in order to purchase securities in such transaction6.3. For any such transaction during During such period, the Company shall give at least four ten (10) Business Days advance written notice to the Buyer Gryphon prior to any non-public offer or sale of any of the Company's securities capital stock or any Common Stock Equivalents in such a capital raising transaction by providing to the Buyer Gryphon a comprehensive term sheet which (A) contains containing all significant business terms of such a proposed transaction, (B) is sufficiently detailed so as to reasonably permit the Buyer the opportunity to determine whether or not to exercise its rights under this Section 5(j) and (C) is at least as detailed as the term sheet or summary of such transaction as the Company shall furnish to any offeree or broker in such transaction. The Buyer Gryphon shall have the right to participate in such proposed transaction and to purchase its Pro Rata Share 25 percent of such securities which are the subject of such proposed transaction for the same consideration and on the same terms and conditions as contemplated for sales to third parties in such transaction third-party sale (or such lesser portion thereof as specified by the BuyerGryphon). If the Buyer Gryphon elects to exercise its rights hereunder for a particular transaction, it shall must deliver written notice to the Company within four five (5) Business Days following receipt from the Company of the notice and comprehensive term sheet meeting from the requirements of this Section 5(j)Company, which notice from the Buyer Gryphon shall be conditional contingent upon (A) the Buyer’s receipt of satisfactory definitive documents for such transaction from the Company if the Company has not furnished final, definitive documents for such transaction to the Buyer at or before the time the Company gives such notice of such transaction to the Buyer, and (B) the satisfaction of the other conditions precedent to the obligations of buyers generally in such transaction to complete such transactionCompany. If, subsequent to the Company giving notice to the Buyer Gryphon hereunder but prior to any of (i) the Buyer Gryphon exercising its right to participate, participate (ii) or the expiration of the four Business Day five-day period without response from the Buyer Gryphon or (iii) the rejection of such offer for such financing by the BuyerGryphon), the terms and conditions of the proposed third-party sale to third parties in such transaction are changed from those that disclosed in the comprehensive term sheet provided to the BuyerGryphon, the Company shall be required to provide a new notice and comprehensive term sheet meeting the requirements of this Section 5(j), reflecting such revised terms, terms to the Buyer Gryphon hereunder and the Buyer Gryphon shall have the right, which must be exercised within four five (5) Business Days of the date the Buyer receives such new notice and such revised comprehensive term sheet, to exercise its rights to purchase the securities on such changed terms and conditions and otherwise as provided hereunder. If In the Buyer event Gryphon does not exercise its rights hereunder with respect to a proposed transaction within the period or periods provided, or affirmatively declines to engage in such proposed transaction with the Company, then the Company may proceed with such proposed transaction on the same terms and conditions as noticed to the Buyer Gryphon (assuming the Buyer Gryphon has consented to the transaction, if required, pursuant to Section 5(n6.2 of this Agreement) and with Gryphon if it has elected to participate in such transaction does not violate any other term or provision of the Transaction Documents)proposed transaction, provided that if such proposed transaction is not consummated within 75 60 days following the Company’s 's notice hereunder, then the rights right of first refusal hereunder shall again be afforded apply to the Buyer Gryphon for such proposed transaction. The rights and obligations of under this Section 5(j) 6.3 shall in no way limit or restrict diminish the other rights of the Buyer Gryphon pursuant to this Section 5. Notwithstanding anything herein to the contrary, failure of the Buyer to affirmatively elect in writing to participate in any proposed transaction within the required time frames shall be deemed to be the equivalent of Buyer’s decision not to participate in such proposed transaction. Notwithstanding the foregoing, this Section 5(j)(1) shall not apply in respect of an Exempt Issuance6.