Common use of Subsequent Offerings Clause in Contracts

Subsequent Offerings. Each Holder shall have a preemptive right to purchase its pro rata share of all Equity Securities (as defined below) that the Issuer may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d). For this purpose, each Holder’s pro rata share is equal to the ratio of (a) the number of shares of Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securities) of which such Holder, together with its Affiliates, is a holder or would be a holder upon conversion or exercise at the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series A Preferred Stock or upon the exercise or conversion of any outstanding warrants or options or convertible securities) outstanding immediately prior to the issuance of such Equity Securities. The term “Equity Securities” shall mean (i) any shares of Common Stock, Series A Preferred Stock, or other equity securities of the Issuer, (ii) any security convertible into or exercisable or exchangeable for, with or without consideration, shares of Common Stock, Series A Preferred Stock or other equity security of the Issuer (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase shares of Common Stock, Series A Preferred Stock or other equity security of the Issuer or (iv) any such warrant or right. It is understood and agreed that the Company shall not have any obligation under this Section 6.5 to effect a registration of Equity Securities. After the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith pursuant to this Section 6.5, and (y) the Expiration Time, this Section 6.5 shall terminate and shall no longer have any force or effect.

Subsequent Offerings. Each Holder Investor shall have a preemptive the right of first refusal to purchase all (or any part of all) of its pro rata share of all Equity Securities (as defined below) that the Issuer Company may, from time to time, propose to sell and issue after the date of this AgreementClosing Date, other than the Equity Securities excluded by Section 6.5(d)10.5 hereof. For this purpose, each Holder’s Investor's pro rata share is equal to the ratio of (ai) the number of shares of Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securities) of which such Holder, together with its Affiliates, is a holder or would be a holder upon conversion or exercise at the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of Common Stock (including all shares of Company's Common Stock issued or issuable upon conversion of the shares of Series A Preferred Stock or upon of which the exercise or conversion of any outstanding warrants or options or convertible securities) outstanding Investor is deemed to be a Holder immediately prior to the issuance of such Equity Securities. The term “Equity Securities” shall mean , over (iii) any the total number of shares of the Company's outstanding Common StockStock issued or issuable upon exercise or conversion of the Warrants and the ULLICO Replacement Warrants, as defined in that certain Stock Purchase Agreement (the "Series C Purchase Agreement") dated as of January 12, 1999 by and among the Company, Vulcan Ventures Incorporated, a Washington corporation ("Vulcan") and certain other purchasers and, with respect to Vulcan, any warrants issued to Vulcan pursuant to that certain Agreement to Issue Warrants, as defined in the Series C Purchase Agreement, and the shares of (a) Series A Preferred Stock, or other equity securities (b) Series B Preferred Stock, as defined in the Company's Articles of Incorporation, as amended, and (c) Series C Preferred Stock, as defined in the IssuerCompany's Articles of Incorporation, as amended, and (iid) any security other Equity Security convertible into or exercisable or exchangeable for, with or without consideration, shares of for Common Stock, Series A Preferred Stock or other equity security authorized and issued subsequent to the Closing of the Issuer (including any option Series C Purchase Agreement which carries a right of first refusal similar to purchase such a convertible security), (iii) any security carrying any warrant or right that provided to subscribe to or purchase shares of Common Stock, Series A Preferred Stock or other equity security of the Issuer or (iv) any such warrant or right. It is understood and agreed that the Company shall not have any obligation under this Section 6.5 to effect a registration of Equity Securities. After the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith pursuant to this Section 6.5, and (y) the Expiration Time, this Section 6.5 shall terminate and shall no longer have any force or effectInvestor herein.

Subsequent Offerings. Each Holder Major Investor shall have a preemptive right of first refusal to purchase its pro rata share of all Equity Securities (Securities, as defined below) , that the Issuer Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d)4.6 hereof. For this purpose, each HolderEach Major Investor’s pro rata share is equal to the ratio of (a) the number of shares of Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securities) of which such Holder, together with its Affiliates, is a holder or would be a holder upon conversion or exercise at the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of Company’s Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series A Preferred Shares) of which such Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities to (b) the total number of shares of the Company’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Shares or, to the extent not included within the meaning of “Shares,” upon the exercise or conversion of any outstanding warrants or options or convertible securitiesoptions) immediately prior to the issuance of the Equity Securities; provided, however, that if the price per share of such Equity Securities is less than $0.70 per share (as adjusted for stock splits, dividends, recapitalizations and the like after the date hereof), each Major Investor’s pro rata share shall be equal to the ratio of (a) the number of shares of the Company’s Series Preferred (as defined in the Charter) of which such Major Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities to (b) the total number of shares of the Company’s issued and outstanding Series Preferred (as defined in the Charter) immediately prior to the issuance of such Equity Securities. The term “Equity Securities” shall mean (i) any shares of Common Stock, Series A Preferred Stock, Stock or other equity securities security of the IssuerCompany, (ii) any security convertible into convertible, exchangeable or exercisable or exchangeable forexercisable, with or without consideration, shares of into or for any Common Stock, Series A Preferred Stock or other equity security of the Issuer (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase shares of any Common Stock, Series A Preferred Stock or other equity security of the Issuer or (iv) any such warrant or right. It is understood and agreed that the Company shall not have any obligation under this Section 6.5 to effect a registration of Equity Securities. After the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith pursuant to this Section 6.5, and (y) the Expiration Time, this Section 6.5 shall terminate and shall no longer have any force or effect.

Subsequent Offerings. Each Holder Investor who is at the relevant time period an “accredited investor” (as defined in Rule 501(a) of Regulation D under the Securities Act) (each, a “Qualified Investor”), shall have a preemptive right of first offer to purchase its pro rata share of all Equity Securities (as defined below) that the Issuer may, from time to time, propose to sell and issue after the date of this AgreementAgreement in a Qualified Issuance (as defined below), other than the Equity Securities excluded by Section 6.5(d)8.5 hereof. For this purpose, each HolderEach Qualified Investor’s pro rata share is equal to the product of (a) the ratio of (ai) the number of shares of Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securities) of which such Holder, together with its Affiliates, is a holder or would be a holder upon conversion or exercise at the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of Issuer’s Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series A Preferred Stock or upon the exercise or conversion of any outstanding warrants or options or convertible securitiesoptions) outstanding which such Qualified Investor is deemed to be a holder immediately prior to the issuance Qualified Issuance to (ii) the total number of such shares of the Issuer’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Preferred Stock or upon the exercise of any outstanding warrants or options) immediately prior to the Qualified Issuance multiplied by (b) the aggregate amount of Equity Securities, other than the Equity Securities excluded by Section 8.5 hereof, to be issued to any Existing Shareholder(s) in such Qualified Issuance. The term “Equity Securities” shall mean (i) any shares of Common Stock, Series A Preferred Stock, Stock or other equity securities security of the Issuer, (ii) any security convertible into or exercisable or exchangeable forconvertible, with or without consideration, shares of into any Common Stock, Series A Preferred Stock or other equity security of the Issuer (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase shares of any Common Stock, Series A Preferred Stock or other equity security of the Issuer or (iv) any such warrant or right. It is understood and agreed that the Company shall not have any obligation under this Section 6.5 to effect a registration of Equity Securities. After the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith pursuant to this Section 6.5, and (y) the Expiration Time, this Section 6.5 shall terminate and shall no longer have any force or effect.

Subsequent Offerings. Each Holder Subject to the terms and conditions herein and any applicable securities laws, each Major Investor shall have a right of first offer (preemptive right rights) to purchase its pro rata share of all Equity Securities (Securities, as defined below) , that the Issuer Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d)4.7 hereof. For this purpose, each HolderEach Major Investor’s pro rata share is equal to the ratio of (a) the number of shares of the Company’s Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock Shares or upon the exercise or conversion of outstanding warrants or options options, but excluding any Common Stock issuable or convertible securitiesissued upon conversion of the Series F Stock and treating the Warrant for such purpose as if it was exercised on the applicable date ) of which such Holder, together with its Affiliates, Major Investor is a holder or would deemed to be a holder upon conversion or exercise at immediately prior to the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of the Company’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series A Preferred Stock Shares or upon the exercise or conversion of any outstanding warrants or options options, but excluding any Common Stock issuable or convertible securitiesissued upon conversion of the Series F Stock and treating the Warrant for such purpose as if it was exercised on the applicable date) outstanding immediately prior to the issuance of such the Equity Securities. The term “Equity Securities” shall mean (i) any shares of Common Stock, Series A Preferred Stock, Stock or other equity securities security of the IssuerCompany, (ii) any security convertible into or exercisable or exchangeable for, with or without consideration, shares of any Common Stock, Series A Preferred Stock or other equity security of the Issuer Company (including any option to purchase such a convertible security), (iii) any equity security carrying any warrant or right to subscribe to or purchase shares of any Common Stock, Series A Preferred Stock or other equity security of the Issuer Company or (iv) any such warrant or right. It is understood and agreed that the Company shall not have other right to subscribe to or purchase any obligation under this Section 6.5 to effect a registration of Equity Securities. After the earlier to occur of (x) the consummation Common Stock, Preferred Stock or other equity security of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith pursuant to this Section 6.5, and (y) the Expiration Time, this Section 6.5 shall terminate and shall no longer have any force or effectCompany.

Subsequent Offerings. Each Holder shall have a preemptive right to purchase its pro rata share of all Equity Securities (as defined below) that the Issuer may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d). For this purpose, each Holder’s Holders pro rata share is equal to the ratio of (a) the number of shares of Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securities) of which such Holder, together with its Affiliates, is a holder or would be a holder upon conversion or exercise at the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series A Preferred Stock or upon the exercise or conversion of any outstanding warrants or options or convertible securities) outstanding immediately prior to the issuance of such Equity Securities. The term “Equity Securities” Securities shall mean (i) any shares of Common Stock, Series A Preferred Stock, or other equity securities of the Issuer, (ii) any security convertible into or exercisable or exchangeable for, with or without consideration, shares of Common Stock, Series A Preferred Stock or other equity security of the Issuer (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase shares of Common Stock, Series A Preferred Stock or other equity security of the Issuer or (iv) any such warrant or right. It is understood and agreed that the Company shall not have any obligation under this Section 6.5 to effect a registration of Equity Securities. After the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith pursuant to this Section 6.5, and (y) the Expiration Time, this Section 6.5 shall terminate and shall no longer have any force or effect.

Subsequent Offerings. Each Holder Stockholder shall have a preemptive right of first refusal to purchase its pro rata share a number of shares of all Equity Securities (as defined belowhereinafter defined) that the Issuer Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d4.4 hereof and Equity Securities which may be purchased by Xxxxxx XX, a German corporation (“Xxxxxx”), under Section 4.5 hereof, up to such Stockholder’s pro rata share of all such Equity Securities. For this purpose, each HolderEach Stockholder’s pro rata share is equal to the ratio of (a) the number of shares of Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securities) of which such Holder, together with its Affiliates, is a holder or would be a holder upon conversion or exercise at the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares Shares of Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series A E Preferred Stock or upon the exercise or conversion of any outstanding warrants or options or convertible securitiesand Series F Preferred Stock) outstanding which such Stockholder holds immediately prior to the issuance of such Equity Securities to (b) the total number of Shares of Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series E Preferred Stock and Series F Preferred Stock or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities held by all Stockholders; provided, however, that to the extent that Xxxxxx exercises its right under Section 4.5 to purchase a portion of the Equity Securities, which is greater than the portion it could purchase under this Section 4.1, the number of shares of Equity Securities which each other Stockholder may purchase under this Section 4.1 shall be proportionately reduced to give effect to the issuance of any Equity Securities purchased by Xxxxxx under Section 4.5 hereof. The term “Equity Securities” shall mean (ia) any shares of Common Stock, Series A E Preferred Stock, or other equity securities of the Issuer, (ii) any security convertible into or exercisable or exchangeable for, with or without consideration, shares of Common Stock, Series A F Preferred Stock or other equity security of the Issuer Company, (b) any security convertible, with or without consideration, into any Common Stock, Series E Preferred Stock, Series F Preferred Stock or other equity security of the Company (including any option to purchase such a convertible security), (iiic) any security carrying any warrant or right to subscribe to or purchase shares of any Common Stock, Series A E Preferred Stock, Series F Preferred Stock or other equity security of the Issuer Company, or (ivd) any such warrant or right. It is understood and agreed that the Company shall not have any obligation under this Section 6.5 to effect a registration of Equity Securities. After the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith pursuant to this Section 6.5, and (y) the Expiration Time, this Section 6.5 shall terminate and shall no longer have any force or effect.

Subsequent Offerings. Each Holder shall have a preemptive Subject to the terms set forth in this Section 5 of this Agreement, the Company hereby grants to each Major Investor the right to purchase its pro rata share of all Equity Securities Pro Rata Amount (as defined below) of any New Securities (as defined in Section 5.2) that the Issuer Company may, from time to time, propose to sell and issue after issue. The Company may, at its election, sell such Major Investor its Pro Rata Amount of New Securities at the date initial closing of this Agreement, other than the Equity sale of New Securities excluded by Section 6.5(d)or at a subsequent closing of which shall take place within ninety (90) days of the initial closing. For this purpose, each HolderA Major Investor’s pro rata share is equal to Pro Rata Amount shall be the ratio of (ai) the number of issued and outstanding shares (on an as-converted basis) of Common Stock (held by such Major Investor, including all shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or Notes assuming a conversion of outstanding warrants or options or convertible securities) of which such Holderprice therefore as provided below, together with its Affiliates, is a holder or would be a holder upon conversion or exercise at the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (bii) the total number of shares of Common Stock of the Company outstanding (on an as-converted basis), including all outstanding securities convertible into, exchangeable for or exercisable for Common Stock on an as-converted or exercised basis (including, but not limited to, the Preferred Stock and outstanding options exercisable for Common Stock), including all shares of Common Stock issued or issuable upon conversion of the Series A Preferred Stock or upon the exercise or Notes assuming a conversion of any outstanding warrants or options or convertible securities) outstanding immediately prior to the issuance of such Equity Securitiesprice therefore as provided below. The term “Equity Securities” conversion price for the Notes utilized to determine a Major Investor’s Pro Rata Amount for purposes of this Section 5 shall mean be (i) any where the New Securities are convertible into Common Stock, the price at which the New Securities are convertible into shares of Common Stock, and (ii) where the New Securities are not convertible into Common Stock, (a) the conversion price of the series of preferred stock of the Company (other than Series A Preferred Stock) first issued by the Company subsequent to the Initial Closing (as defined in the Purchase Agreement) or (b) if no such shares shall have been issued, or other equity securities the fair market value of the IssuerCommon Stock at the date of issuance of the New Securities, as determined in good faith by the Board of Directors of the Company (iithe “Board”) (such determination of the fair market value of the Common Stock shall be not be based on any security valuation report prepared for purposes of valuing Common Stock as provided under Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance thereunder; furthermore, any such valuation shall be based on a methodology for determination of the fair market value of the Common Stock which assumes that the number of shares of Common Stock outstanding includes the conversion of all outstanding securities convertible into or exercisable or exchangeable forfor Common Stock on an as-converted (including, with or without considerationbut not limited to, shares the Preferred Stock and any convertible debt instruments of the Company)); provided, however, that if the Major Investor disputes the Board’s determination of the then fair market value of the Common Stock, Series A Preferred Stock or other equity security the Major Investor shall be entitled to have the fair market value determined by an independent appraiser selected by the Major Investor and reasonably acceptable to the Company. All costs of the Issuer (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase shares of Common Stock, Series A Preferred Stock or other equity security of the Issuer or (iv) any such warrant or right. It is understood and agreed that the Company shall not have any obligation appraisal under this Section 6.5 to effect a registration of Equity Securities. After 5.1 shall be shared equally by the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, Company and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith pursuant to this Section 6.5, and (y) the Expiration Time, this Section 6.5 shall terminate and shall no longer have any force or effectMajor Investor.

Subsequent Offerings. Each Holder Subject to applicable securities laws, commencing on the date hereof and ending on the date that is the eighteen months following the registration under the Securities Act of the Company’s capital stock held by you in connection with the consummation of the Merger (the “Term”), each of you and your affiliates that is an “accredited investor” within the meaning of Regulation D under the Securities Act (each an “Investor”) shall have a preemptive right of first refusal to purchase its pro rata share of all Equity Securities (Securities, as defined below) , that the Issuer Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d)1.4 hereof. For this purpose, each HolderEach Investor’s pro rata share is equal to the ratio of (a) the number of shares of Common Stock (including all shares of Common Stock issuable or issued upon conversion capital stock of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securities) of Company which such Holder, together with its Affiliates, Investor is a holder or would be a holder upon conversion or exercise at deemed to beneficially own immediately prior to the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) Securities, to (b) the total number of shares of Common Stock the Company’s common stock outstanding (including all shares of Common Stock common stock issued or issuable upon conversion of the Series A Preferred Stock preferred stock or upon the exercise or conversion of any outstanding warrants or options or convertible securitiesoptions) outstanding immediately prior to the issuance of such the Equity Securities. Furthermore, the Company hereby agrees that following the Merger it shall not directly or indirectly pay any finders fees, sales commissions or other similar fees in connection with any amounts an Investor invests in Equity Securities pursuant to the rights granted in this Section 1.1. The term “Equity Securities” shall mean (i) any shares of Common Stockcommon stock, Series A Preferred Stock, preferred stock or other equity securities security of the IssuerCompany, (ii) any security convertible into or exercisable or exchangeable for, with or without consideration, shares of Common Stockany common stock, Series A Preferred Stock preferred stock or other equity security of the Issuer (including any option to purchase such a convertible security)) of the Company, (iii) any security carrying any warrant or right to subscribe to or purchase shares of Common Stockany common stock, Series A Preferred Stock preferred stock or other equity security of the Issuer Company or (iv) any such warrant or right. It is understood and agreed that Notwithstanding anything herein to the contrary, if (A)(1) the Company shall not have any obligation under this Section 6.5 to effect entered into discussions regarding a registration sale or issuance of Equity Securities. After Securities prior to the earlier expiration of the Term or (2) you received a Notice (as defined below) with respect to occur a sale or issuance of Equity Securities prior to the expiration of the Term, (xB) the consummation Company did not complete the sale or issuance of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities as described in connection therewith pursuant to this Section 6.5clauses (1) and (2) above, and (yC) the Expiration TimeCompany thereafter completes such sale or issuance described in clauses (1) and/or (2) above within one (1) year following the expiration of the Term, this Section 6.5 then your rights hereunder shall terminate and shall no longer have any force apply to such sale or effectissuance of the Equity Securities during that one (1)-year period.

Subsequent Offerings. Each Holder So long as such Lender’s Note is outstanding or such Lender holds Series A Stock, each Lender shall have a preemptive right of first refusal to purchase its pro rata share of all Equity Securities (Securities, as defined below) , that the Issuer Borrower may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d)4(i)(iv) hereof. For this purpose, each HolderEach Lender’s pro rata share is shall be equal to the ratio of (aA) the number of shares of Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securities) of which such Holder, together with its Affiliates, is a holder or would be a holder upon conversion or exercise at the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of Borrower’s Common Stock (including all shares of Common Stock issued or issuable upon assuming full conversion of the Series A Note and the Preferred Stock or upon and exercise of the exercise or conversion Warrants) of any outstanding warrants or options or convertible securities) outstanding which such Lender is deemed to be a holder immediately prior to the issuance of such Equity SecuritiesSecurities to (B) the total number of shares of the Company’s outstanding Common Stock (including all shares of Common Stock issued or issuable assuming full conversion of the Note and the Preferred Stock and exercise of the Warrants) immediately prior to the issuance of the Equity Securities (“Pro Rata Share”). The term “Equity Securities” shall mean (i) any shares of Common Stock, Series A Preferred Stock, preferred stock or other equity securities security of the IssuerCompany, (ii) any security convertible into or exercisable or exchangeable forconvertible, with or without consideration, shares of into any Common Stock, Series A Preferred Stock preferred stock or other equity security of the Issuer (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase shares of any Common Stock, Series A Preferred Stock preferred stock or other equity security of the Issuer or (iv) any such warrant or right. It is understood and agreed that the Company shall not have any obligation under For purposes of this Section 6.5 4(i), the term “Lender” includes any Affiliates of a Lender. A Lender shall be entitled to effect a registration apportion the right of Equity Securities. After the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, refusal hereby granted it among itself and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities Affiliates in connection therewith pursuant to this Section 6.5, and (y) the Expiration Time, this Section 6.5 shall terminate and shall no longer have any force or effectsuch proportions as it deems appropriate.

Subsequent Offerings. Each Holder shall have a preemptive right of first refusal to purchase its pro rata share of all Equity Securities (Securities, as defined below) , that the Issuer Company may, from time to time, propose to sell and issue for cash after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d)16.7 hereof; provided, however, that such Holder shall be, at the time of the offer of such Equity Securities, an “accredited investor” as such term is defined under Rule 501(a) promulgated under the Securities Act (or such other investor suitability standards required under the exemption from registration of the securities offered relied upon by the Company, as determined by the Company and its counsel) and shall have provided to the Company with evidence reasonably satisfactory to the Company that such Holder is an “accredited investor” or otherwise meets the required investor suitability standards. For this purpose, each Each Holder’s pro rata share is equal to the ratio of (a) the number of shares of Common Stock Shares (including all shares of Common Stock Shares issued or issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securitiesShares) of which such Holder, together with its Affiliates, Holder is a holder or would deemed to be a holder upon conversion or exercise at immediately prior to the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of the Company’s Fully Diluted Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series A Preferred Stock or upon the exercise or conversion of any outstanding warrants or options or convertible securities) outstanding immediately prior to the issuance of such the Equity Securities. The term “Equity Securities” shall mean (i) any shares of Common StockShares, Series A Preferred Stock, Shares or other equity securities security of the IssuerCompany, (ii) any equity security convertible into or exercisable or exchangeable forconvertible, with or without consideration, shares of into any Common StockShares, Series A Preferred Stock Shares or other equity security of the Issuer (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase shares of any Common StockShares, Series A Preferred Stock Shares or other equity security of the Issuer or (iv) any such warrant or right. It is understood and agreed that the Company shall not have any obligation under this Section 6.5 to effect For purposes of calculating a registration of Equity Securities. After the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith Holder’s pro rata share pursuant to this Section 6.516.1, and the number of shares of the Company’s Common Shares which such Holder is deemed to hold may, at the election of such Holder, include shares held by any entity affiliated with such Holder, provided that, if such affiliated entity is also a Holder, such shares shall only be counted once in such pro rata calculation, such that the shares are included for only one such Holder. The term “Fully Diluted Common” shall mean the sum of (yi) the Expiration Timenumber of Common Shares outstanding immediately prior to such issuance, this Section 6.5 shall terminate and shall no longer have plus (ii) the number of Common Shares into which any force Preferred Shares outstanding immediately prior to such issuance may be converted at the applicable conversion price then in effect, plus (iii) the number of Common Shares for which any options to purchase, rights to subscribe, other warrants or effectderivative equity securities are outstanding or authorized by any duly adopted stock option plan or other plan or agreement of the Company prior to such issuance, plus (iv) the number of Common Shares into which any other convertible or exchangeable equity securities outstanding immediately prior to such issuance may be converted or exchanged.

Subsequent Offerings. Each Holder shall have a preemptive right of first refusal to purchase its pro rata share of all Equity Securities (Securities, as defined below) , that the Issuer Company may, from time to time, propose to sell and issue for cash after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d). For this purpose16.7 hereof; provided, each however, that such Holder shall be, at the time of the offer of such Equity Securities, an “accredited investor” as such term is defined under Rule 501(a) promulgated under the Securities Act and shall have provided to the Company with evidence reasonably satisfactory to the Company that such Holder is an “accredited investor.” Each Holder’s pro rata share is equal to the ratio of (a) the number of shares of Common Stock Shares (including all shares of Common Stock Shares issued or issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securitiesShares) of which such Holder, together with its Affiliates, Holder is a holder or would deemed to be a holder upon conversion or exercise at immediately prior to the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of the Company’s Fully Diluted Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series A Preferred Stock or upon the exercise or conversion of any outstanding warrants or options or convertible securities) outstanding immediately prior to the issuance of such the Equity Securities. The term “Equity Securities” shall mean (i) any shares of Common StockShares, Series A Preferred Stock, Shares or other equity securities security of the IssuerCompany, (ii) any equity security convertible into or exercisable or exchangeable forconvertible, with or without consideration, shares of into any Common StockShares, Series A Preferred Stock Shares or other equity security of the Issuer (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase shares of any Common StockShares, Series A Preferred Stock Shares or other equity security of the Issuer or (iv) any such warrant or right. It is understood and agreed that the Company shall not have any obligation under this Section 6.5 to effect For purposes of calculating a registration of Equity Securities. After the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith Holder’s pro rata share pursuant to this Section 6.516.1, and the number of shares of the Company’s Common Shares which such Holder is deemed to hold may, at the election of such Holder, include shares held by any entity affiliated with such Holder, provided that, if such affiliated entity is also a Holder, such shares shall only be counted once in such pro rata calculation, such that the shares are included for only one such Holder. The term “Fully Diluted Common” shall mean the sum of (yi) the Expiration Timenumber of Common Shares outstanding immediately prior to such issuance, this Section 6.5 shall terminate plus (ii) the number of Common Shares into which any Preferred Shares outstanding immediately prior to such issuance may be converted at the applicable conversion price then in effect, plus (iii) the number of Common Shares and shall no longer have Preferred Shares for which any force options to purchase, rights to subscribe, warrants or effectother derivative equity securities are outstanding or authorized by any duly adopted stock option plan or other plan of the Company prior to such issuance, plus (iv) the number of Common Shares into which any other convertible or exchangeable securities, including convertible debt securities, outstanding immediately prior to such issuance may be converted or exchanged.

Subsequent Offerings. Each Holder Subject to applicable securities laws, each Major Investor, as defined below, shall have a preemptive right of first refusal to purchase its pro rata share of all Equity Securities (Securities, as defined below) , that the Issuer Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d)4.7 hereof. For this purpose, each HolderEach Investor’s pro rata share is equal to the ratio of (a) the number of shares of the Company’s Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securitiesoptions) of which such Holder, together with its Affiliates, Investor is a holder or would deemed to be a holder upon conversion or exercise at immediately prior to the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of the Company’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series A Preferred Stock or upon the exercise or conversion of any outstanding warrants or options or convertible securitiesoptions) outstanding immediately prior to the issuance of such the Equity Securities. The term “Major Investor” shall mean (i) between the period beginning from the date of this Agreement and ending on the third anniversary of this Agreement, each Investor, and (ii) following the third anniversary of this Agreement, only each Investor who, together with any person or entity affiliated with such Investor, holds at least 5% of the Company’s Common Stock (including all shares of Common Stock issuable or issued upon the exercise of outstanding warrants or options). The term “Equity Securities” shall mean (i) any shares of Common Stock, Series A Preferred Stock, Stock or other equity securities security of the IssuerCompany, (ii) any security convertible into or exercisable or exchangeable for, with or without consideration, shares of any Common Stock, Series A Preferred Stock or other equity security of the Issuer (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase shares of any Common Stock, Series A Preferred Stock or other equity security of the Issuer or (iv) any such warrant or right. It is understood and agreed Notwithstanding anything to the contrary contained in this Agreement, in lieu of exercising its right of first refusal under this Section 4 in connection with the Company’s issuance of additional Equity Securities, any Major Investor may instead require that the Company shall exercise the Company Buyout Option (as defined in Section 4.8 below) with respect to its shares, provided, however, that the Company would not have any obligation under this Section 6.5 be obligated to effect a registration of Equity Securities. After pay the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith pursuant to this Section 6.5, and (y) the Expiration Time, this Section 6.5 shall terminate and shall no longer have any force or effectInterest Payment.

Subsequent Offerings. Each Holder During the two years immediately following the execution of this Agreement, each Investor shall have a preemptive right of first refusal to purchase his, her or its pro rata share of all Equity Securities (or Convertible Debt Securities, as those terms are defined below) below and referred to collectively as “Securities,” that the Issuer Company may, from time to time, propose to sell and issue for cash after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d). For this purpose4(f) hereof; provided, each Holderhowever, that such Investor shall be, at the time of the offer of such Securities, an “accredited investor” as such term is defined under Rule 501(a) promulgated under the Act and shall have provided to the Company with evidence reasonably satisfactory to the Company that such Investor is an “accredited investor.” Each Investor’s pro rata share is equal to the ratio of (a) the number of shares of Common Stock common stock (including all shares of Common Stock common stock issued or issuable or issued upon conversion of the Series A Preferred Stock Notes or upon exercise of the exercise or conversion of outstanding warrants or options or convertible securitiesNote Warrants) of which such Holder, together with its Affiliates, Holder is a holder or would deemed to be a holder upon conversion or exercise at immediately prior to the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of the Company’s Fully Diluted Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series A Preferred Stock or upon the exercise or conversion of any outstanding warrants or options or convertible securitiesas defined below) outstanding immediately prior to the issuance of such Equity the Securities. The term “Equity Securities” shall mean (i) any shares of Common Stockcommon stock, Series A Preferred Stock, preferred stock or other equity securities security of the IssuerCompany, (ii) any equity security convertible into or exercisable or exchangeable forconvertible, with or without consideration, into any shares of Common Stockcommon stock, Series A Preferred Stock preferred stock or other equity security of the Issuer (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any shares of Common Stockcommon stock, Series A Preferred Stock preferred stock or other equity security of the Issuer or (iv) any such warrant or right. It The term “Convertible Debt Securities” shall mean any bonds, notes, debentures, or other debt security of the Company, whether or not bearing interest as long as it has any element which is understood and agreed that the Company shall not have any obligation under this Section 6.5 to effect a registration of convertible into Equity Securities. After the earlier to occur For purposes of (x) the consummation of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith calculating an Investor’s pro rata share pursuant to this Section 6.54(a), and the number of shares of the Company’s common stock which such Investor is deemed to hold may, at the election of such Investor, include shares held by any entity affiliated with such Investor, provided that, if such affiliated entity is also an Investor, such shares shall only be counted once in such pro rata calculation, such that the shares are included for only one such Investor. The term “Fully Diluted Common” shall mean the sum of (yi) the Expiration Timenumber of shares of common stock outstanding immediately prior to such issuance, this Section 6.5 shall terminate plus (ii) the number of shares of common stock into which any preferred stock outstanding immediately prior to such issuance may be converted at the applicable conversion price then in effect, plus (iii) the number of shares of common stock and shall no longer have preferred stock for which any force options to purchase, rights to subscribe, Note Warrants, other warrants or effectderivative equity securities are outstanding or authorized by any duly adopted stock option plan or other plan of the Company prior to such issuance, plus (iv) the number of shares of common stock into which any other convertible or exchangeable securities, including Note Warrants and convertible debt securities, outstanding immediately prior to such issuance may be converted or exchanged.

Subsequent Offerings. Each Holder Investor shall have a preemptive right to purchase its pro rata share of all Equity Securities Pro Rata Amount (as defined herein) of any Equity Securities, as defined below) , that the Issuer Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 6.5(d)4.6 hereof. For this purposeThe Company may, each Holder’s pro rata share is at its election, sell such Investor its Pro Rata Amount of Equity Securities at the initial closing of the sale of Equity Securities or at a subsequent closing of which shall take place within ninety (90) days of the initial closing. An Investor's Pro Rata Amount shall be equal to the ratio of (aA) the number of shares of Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock or upon the exercise or conversion of outstanding warrants or options or convertible securities) of which such Holder, together with its Affiliates, is a holder or would be a holder upon conversion or exercise at the time notice of the proposed issuance of such Equity Securities is given by the Issuer pursuant to Section 6.5(b) to (b) the total number of shares of Company's Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Series A Preferred Shares or any other securities convertible into Common Stock or upon the exercise or conversion of any outstanding warrants or options, to the extent such warrants or options or convertible securitiesare vested and exercisable) outstanding which such Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities to (B) the total number of shares of the Company's outstanding Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Shares or any other securities convertible into Common Stock or upon the exercise of any outstanding warrants or options, to the extent such warrants or options are vested and exercisable) immediately prior to the issuance of the Equity Securities. The term “"Equity Securities” " shall mean (i) any shares of Common Stock, Series A Preferred Stock, Stock or other equity securities security of the IssuerCompany, (ii) any security convertible into or exercisable or exchangeable forconvertible, with or without consideration, shares of into any Common Stock, Series A Preferred Stock or other equity security of the Issuer (including any option or warrant to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase shares of any Common Stock, Series A Preferred Stock or other equity security of the Issuer or (iv) any such warrant or right. It is understood and agreed ; provided, however, that notwithstanding the Company shall not have any obligation under provisions of this Section 6.5 to effect 4, in the event that an Equity Security is a registration New Security, then the provisions of Equity Securities. After the earlier to occur of (x) the consummation of the first Public Market Issuance after the date hereof, and the corresponding exercise (or failure to exercise) by each Holder of its right to acquire Equity Securities in connection therewith pursuant to this Section 6.5, and (y) the Expiration Time, this Section 6.5 5.1 shall terminate and shall no longer have any force or effectcontrol.