Common use of First Right of Purchase Clause in Contracts

First Right of Purchase. Any Institutional Stockholder (other than Bate▇) ▇▇y Transfer any interest in any Restricted Securities to any transferee PROVIDED that any such Transfer shall be made in accordance with the provisions of this Section 3.2 and Sections 3.3 and 3.4 and in compliance with the requirements any applicable federal or state securities laws. At least 30 days prior to making any such Transfer of any Institutional Stock, the transferring Institutional Stockholder (the "Transferring Stockholder") will deliver a written notice (the "Offer Notice") to each of the other Institutional Stockholders. The Offer Notice will disclose in reasonable detail the proposed number of shares of Restricted Securities to be transferred, the type of such Restricted Securities, the proposed price, terms and conditions of the Transfer and the identity of the transferee. Any Institutional Stockholder may elect (by itself or through an Affiliate of such Institutional Stockholder) to purchase all of the shares of any Restricted Securities specified in any Offer Notice given by a Transferring Stockholder at the price and on the terms specified therein by written notice of such election to the Transferring Stockholder within 30 days after delivery of such Offer Notice (the "Institution Election Period"). If any of the Institutional Stockholders elects to purchase all of such Restricted Securities, the Transfer of the Restricted Securities will be consummated within 15 days after the expiration of the Institution Election Period. If more than one Institutional Stockholder elects to purchase all of the Restricted Securities to be transferred, each Institutional Stockholder electing to purchase such Restricted Securities will be entitled to purchase a PRO RATA portion (based upon the respective numbers of shares of Restricted Securities then held by such Institutional Stockholders (on a fully diluted basis)) of the Restricted Securities proposed to be transferred. If none of the Institutional Stockholders elects to purchase all of the Restricted Securities being offered, the Transferring Stockholder may, within 90 days after the expiration of the Institution Election Period, Transfer the Restricted Securities specified in the Offer Notice to one or more third parties specified in the Offer Notice at a price and on terms no more favorable to the transferees than the price and terms offered to the Institutional Stockholders in the Offer Notice, PROVIDED that no such Transfer may be completed except in compliance with Section 3.3 and unless each of such transferees shall have executed and delivered an Instrument of Accession as a condition precedent to the transfer thereof. If the Transferring Stockholder fails to consummate such transfer within the 90 day period after the expiration of the Institution Election Period, any subsequent proposed Transfer of the Restricted Securities shall be once again subject to the provisions of this Section 3.2.

First Right of Purchase. (a) Any Institutional Stockholder (other than Bate▇) ▇▇y Transfer any interest in any Restricted Securities to any transferee PROVIDED that any such Transfer shall be made in accordance with the provisions of this Section 3.2 and Sections 3.3 and 3.4 and in compliance with the requirements any applicable federal or state securities laws. At least 30 days prior to making any such Transfer of any Institutional Stock, the transferring Institutional Stockholder (the "“Transferring Stockholder"”) will proposing to make any Transfer of Securities, other than an Exempt Transfer (a “Proposed Transfer”), shall deliver a written notice (the "“Investor Offer Notice"”) to each of the other Institutional StockholdersDesignated Holders and the Company at least forty-five (45) days prior to the Proposed Transfer. The Investor Offer Notice will state the Transferring Stockholder’s bona fide intention to make the Proposed Transfer, and disclose in reasonable detail the proposed material terms of the Proposed Transfer, including the number of shares of Restricted Securities proposed to be transferredTransferred, the type class or classes of such Restricted Securities, the proposed price, terms and conditions of the Transfer price and the identity of the proposed transferee. Any Institutional Stockholder , and the status of the Transferring Stockholder’s arrangement with the proposed transferee (including whether the proposed transferee has made a binding offer or is otherwise committed to acquire the Securities to be transferred). (b) Subject to the terms of this Section 2.2, the Designated Holders may elect (by itself or through an Affiliate of such Institutional Stockholder) to purchase all or any portion of the shares of any Restricted Securities specified in any the Investor Offer Notice given by a Transferring Stockholder at the price and on the terms specified therein by delivering written notice of such election to the Transferring Stockholder Stockholder, the other Stockholders and the Company within 30 forty-five (45) days after delivery the Designated Holders’ receipt of such the Investor Offer Notice (the "Institution “First Election Period"”). If any The Designated Holders may, in their discretion, allocate between them the Securities (if any) to be purchased in such election, such allocation to be set forth in the written notice of such election. In the absence of such mutual allocation, the Designated Holders shall be entitled to purchase their respective pro rata shares of the Institutional Stockholders elects Securities specified in the Investor Offer Notice, based on the number of Total Shares held by each Designated Holder and its Affiliates divided by the number of Total Shares then held by both Designated Holders and their Affiliates. (c) If the Designated Holders elect to purchase all Securities being offered, the consummation of such Restricted Securities, purchase will take place by the Transfer later of the Restricted Securities will be consummated within 15 (i) thirty (30) days after the expiration of the Institution First Election Period, and (ii) five (5) Business Days after receipt of all consents, waivers and approvals necessary to consummate such purchase. (d) If the Designated Holders do not elect to purchase all of the Securities specified in the Investor Offer Notice, the Company may elect to purchase the balance of the Securities specified in the Investor Offer Notice at the price and on the terms specified therein by delivering written notice thereof to the Transferring Stockholder and the other Stockholders within fifteen (15) days after the expiration of the First Election Period (the “Second Election Period”). If the Company elects to purchase Securities being offered, the consummation of such purchase will take place by the later of (i) thirty (30) days after the expiration of the Second Election Period, and (ii) five (5) Business Days after receipt of all consents, waivers and approvals necessary to consummate such purchase. (e) If the Company does not elect to purchase all of the Securities specified in the Investor Offer Notice, the Company shall provide written notice to the 5% Holders (other than the Designated Holders), including a copy of the Investor Offer Notice, within two (2) Business Days after the date that the Second Election Period expires, setting forth the amount of the Securities that the Designated Holders and the Company did not elect to purchase, and each of the 5% Holders (other than the Designated Holders) may elect to purchase some or all of the balance of the Securities specified in the Investor Offer Notice at the price and on the terms specified therein by delivering written notice thereof to the Transferring Stockholder, the other Stockholders and the Company within fifteen (15) days after the date of delivery of such notice from the Company (the “Third Election Period”). (f) If any 5% Holder elects to purchase any of the remaining Securities pursuant to Section 2.2(e), the consummation of such purchase will take place by the later of (i) thirty (30) days after the expiration of the Third Election Period, and (ii) three (3) days after receipt of all consents, waivers and approvals necessary to consummate such purchase. If more than one Institutional Stockholder such 5% Holder elects to purchase all any of the Restricted Securities to be transferredbeing offered, each Institutional Stockholder such 5% Holder electing to purchase such Restricted Securities will be entitled to purchase from the Transferring Stockholder a PRO RATA pro rata portion (based upon the respective numbers of shares Securities (determined on a fully diluted and an as-converted to Common Stock basis but not giving effect to the exercise of Restricted Securities any outstanding options or warrants to purchase Common Stock) then held by such Institutional Stockholders electing 5% Holders, with the consummation of such purchase to take place by the later of (on a fully diluted basis)i) thirty (30) days after the expiration of the Restricted Securities proposed Third Election Period, and (ii) five (5) Business Days after receipt of all consents, waivers and approvals necessary to be transferred. consummate such purchase. (g) If none of the Institutional Stockholders elects Designated Holders, the Company and/or the 5% Holders do not elect to purchase all of the Restricted Securities being offeredspecified in the Investor Offer Notice, neither the Designated Holders, the Company nor the 5% Holders shall be entitled to purchase any of the Securities specified in the Investor Offer Notice, and the Transferring Stockholder may, within 90 ninety (90) days but not less than ten (10) days after the expiration of the Institution Third Election Period, but subject to Section 2.3, complete the Proposed Transfer the Restricted Securities specified in the Offer Notice to one or more third parties specified in the Offer Notice at a price and on terms no more favorable to the transferees than the price and terms offered to the Institutional Stockholders in the Investor Offer Notice, PROVIDED ; provided that no such Proposed Transfer may be completed except in compliance with Section 3.3 and unless each of such transferees shall have executed and delivered an Instrument of Accession to the Company as a condition precedent to the transfer thereofthereto. If the Transferring Stockholder fails to consummate such transfer Proposed Transfer within the 90 ninety (90) day period after the expiration of the Institution Third Election Period, any subsequent proposed Transfer of the Restricted such Securities shall be once again subject to the provisions of this Section 3.22.2.

First Right of Purchase. Any Institutional Stockholder (During the period that begins six months from the Closing Date and ending on the first anniversary of the Closing Date, prior to a Holder making or soliciting a Sale of any Registrable Securities other than Bate▇) ▇▇y Transfer any interest in any Restricted Securities to any transferee PROVIDED that any a Permitted Transferee, such Transfer Holder shall be made in accordance provide Mpower with the provisions of this Section 3.2 and Sections 3.3 and 3.4 and in compliance with the requirements any applicable federal or state securities laws. At least 30 days prior to making any such Transfer of any Institutional Stock, the transferring Institutional Stockholder written notice (the a "Transferring StockholderSale Notice") will of its intent to make or solicit such Sale. Upon receipt of a Sale Notice, Mpower shall have 5 business days to deliver to such Holder a written notice offer (a "Purchase Offer"), with reasonable documentation showing all calculations, to purchase such Registrable Securities, at a price equal to the mean average of the fair market value of such Registrable Securities sold as a block (the "Offer Price"), as determined by each of three block traders chosen by Mpower from three brokerage firms of recognized reputation. In the event that Mpower delivers a Purchase Offer within 5 business days, such Holder may, at its sole discretion within 2 business days, deliver to Mpower a written notice of acceptance (an "Acceptance Notice") to each of the other Institutional StockholdersPurchase Offer. The Upon the receipt of an Acceptance Notice, Mpower shall have 3 business days to complete the Sale of such Registrable Securities at the Offer Notice will disclose in reasonable detail Price. In the proposed number event that, (i) within 5 business days from the date of shares receipt of Restricted the Sale Notice, such Holder has not received a written offer from Mpower to purchase the Registrable Securities, or (ii) within 3 business days from the date of receipt of the Acceptance Notice, Mpower has failed to complete the purchase of such Registrable Securities (unless such failure is a result of the actions or inactions of the Holder), such Holder shall have the right to make or solicit a Sale of such Registrable Securities to be transferredany other Person, subject to the terms of this Agreement, within 5 business days. In the event that such Holder elects, at its sole discretion, not to deliver an Acceptance Notice, the type Holder shall be prohibited from making or soliciting a Sale of such Restricted SecuritiesRegistrable Securities prior to the delivery of another Sale Notice and compliance with this Section 11. Notwithstanding anything else in this Section 11, the proposed priceHolder, terms and conditions of the Transfer and the identity of the transferee. Any Institutional Stockholder may elect (by itself or through an Affiliate of such Institutional Stockholder) to purchase all of the shares of together with any Restricted Securities specified in any Offer Notice given by a Transferring Stockholder at the price and on the terms specified therein by written notice of such election to the Transferring Stockholder within 30 days after delivery of such Offer Notice (the "Institution Election Period"). If any of the Institutional Stockholders elects to purchase all of such Restricted SecuritiesPermitted Transferees, the Transfer of the Restricted Securities will be consummated within 15 days after the expiration of the Institution Election Period. If more than one Institutional Stockholder elects to purchase all of the Restricted Securities to be transferred, each Institutional Stockholder electing to purchase such Restricted Securities will shall be entitled to purchase a PRO RATA portion (based upon the respective numbers of shares of Restricted Securities then held by such Institutional Stockholders (on a fully diluted basis)) of the Restricted Securities proposed to be transferred. If none of the Institutional Stockholders elects to purchase all of the Restricted Securities being offered, the Transferring Stockholder may, within 90 days after the expiration of the Institution Election Period, Transfer the Restricted Securities specified provide Mpower with 5 Sale Notices in the Offer Notice to one or more third parties specified in the Offer Notice at a price and on terms no more favorable to the transferees than the price and terms offered to the Institutional Stockholders in the Offer Notice, PROVIDED that no such Transfer may be completed except in compliance with Section 3.3 and unless each of such transferees shall have executed and delivered an Instrument of Accession as a condition precedent to the transfer thereof. If the Transferring Stockholder fails to consummate such transfer within the 90 day period after the expiration of the Institution Election Period, any subsequent proposed Transfer of the Restricted Securities shall be once again subject to the provisions of this Section 3.2aggregate.

First Right of Purchase. (a) Any Institutional Stockholder (proposing to make any Transfer of Securities other than Bate▇any Transfer of the type described in clauses (a) ▇▇y Transfer any interest in any Restricted Securities through (c) of Section 2.1 above, shall (x) require prior consent required pursuant to any transferee PROVIDED that any such Transfer shall be made in accordance Section 2.1 and (y) comply with the provisions of this Section 3.2 2.2 and Sections 3.3 and 3.4 and in compliance with the requirements any applicable federal or state securities lawsSection 2.3. At least 30 forty-five (45) days prior to making any such Transfer of any Institutional Stockproposed Transfer, the transferring Institutional Stockholder (the "“Transferring Stockholder"”) will deliver a written notice (the "“Investor Offer Notice"”) to the Company. The Company shall promptly deliver a copy of such Investor Offer Notice to each of the other Institutional holders of Series A Preferred Stock (the “Non-Transferring Stockholders”). The Investor Offer Notice will disclose in reasonable detail the proposed number of shares of Restricted Securities proposed to be transferred, the type class or classes of such Restricted Securities, the proposed price, terms and conditions of the Transfer and the identity of the proposed transferee. Any Institutional Stockholder . (b) Subject to the terms of this Section 2.2, the Company may elect (by itself or through an Affiliate of such Institutional Stockholder) to purchase all or a portion of the shares of any Restricted Securities specified in any the Investor Offer Notice given by a Transferring Stockholder at the price and on the terms specified therein by delivering written notice of such election to the Transferring Stockholder and the Non-Transferring Stockholders within 30 thirty (30) days after the delivery of such the Investor Offer Notice (the "Institution “Company Election Period"”). If any of the Institutional Stockholders elects Company does not elect to purchase all of such Restricted Securities, Securities prior to the Transfer expiration of the Restricted Company Election Period, each of the Non-Transferring Stockholders may elect to purchase the balance of the Securities will be consummated specified in the Investor Offer Notice at the price and on the terms specified therein by delivering written notice of such election to the Transferring Stockholder and the Company within 15 fifteen (15) days after the expiration of the Institution Company Election Period (the “Stockholder Election Period”). (c) If the Company and/or any Non-Transferring Stockholders elect to purchase all of the Securities of such class being offered, subject to the terms of Section 2.1, the Transfer of such Securities will be consummated within forty-five (45) days after the expiration of the Company Election Period or the Stockholder Election Period, as the case may be. If more than one Institutional Non-Transferring Stockholder elects to purchase all any of the Restricted Securities to be transferredbeing offered, each Institutional Non-Transferring Stockholder electing to purchase such Restricted Securities will be entitled to purchase from the Transferring Stockholder a PRO RATA pro rata portion (based upon the respective numbers of shares of Restricted Securities then held by such Institutional Stockholders (on a fully diluted basisNon-Transferring Stockholders)) of the Restricted Securities proposed to be transferred. If none of the Institutional Company and/or the Non-Transferring Stockholders elects do not elect to purchase all of the Restricted Securities being offered, neither the Company nor the Non-Transferring Stockholders shall be entitled to purchase any of the Securities being offered and the Transferring Stockholder may, within 90 ninety (90) days but not less than fifteen (15) days after the expiration of the Institution Stockholder Election Period, complete the Transfer the Restricted of such Securities specified in the Offer Notice to one or more third parties specified in the Offer Notice at a price and on terms no more favorable to the transferees than the price and terms offered to the Institutional Stockholders in the Investor Offer Notice, PROVIDED provided, that no such Transfer may be completed except in compliance with Section 3.3 2.3, if applicable, and unless each of such transferees shall have executed and delivered an Instrument of Accession as a condition precedent to the transfer thereof. If the Transferring Stockholder fails to consummate such transfer Transfer within the 90 ninety (90) day period after the expiration of the Institution Stockholder Election Period, any subsequent proposed Transfer of the Restricted such Securities shall be once again subject to the provisions of this Section 3.22.2.

First Right of Purchase. Any Institutional Stockholder 19.01 If, at any time, any Partner desires to sell all or any portion of its interest (other than Bate▇) ▇▇y Transfer any interest in any Restricted Securities a sale by a Partner to any transferee PROVIDED that any Affiliate), such Transfer Partner shall give the other Partners notice of its intention to seek a purchaser for such interest promptly after making the determination to do so. Such Partner, upon securing a bona fide offer to purchase such interest intended to be sold shall give the other Partners notice of (a) the price (which shall be made in accordance with the provisions of this Section 3.2 and Sections 3.3 and 3.4 and in compliance with the requirements any applicable federal or state securities laws. At least 30 days prior to making any such Transfer of any Institutional Stocka dollar sum), the transferring Institutional Stockholder (the "Transferring Stockholder"b) will deliver a written notice (the "Offer Notice") to each of the other Institutional Stockholders. The Offer Notice will disclose in reasonable detail the proposed number of shares of Restricted Securities to be transferred, the type of such Restricted Securities, the proposed price, terms and conditions of the Transfer and the identity of the transfereeproposed purchaser (if then known to the seller) and (c) all other terms of sale. Any Institutional Stockholder may elect The Remaining Partners shall have the right pro rata to their Partner Percentage, during the forty-five (by itself or through an Affiliate 45) day period after the giving of such Institutional Stockholder) the notice of the proposed sale and its terms to enter into agreement to purchase all of the shares of any Restricted Securities interest specified in any Offer Notice given by the notice (which price shall be prorated if the Remaining Partners want o purchase only a Transferring Stockholder at portion of the price interest being offered for sale) and on upon the terms specified therein by written notice of such election to set forth in the Transferring Stockholder within 30 days after delivery of such Offer Notice (notice. In the "Institution Election Period"). If any of the Institutional Stockholders elects to purchase all of such Restricted Securities, the Transfer of the Restricted Securities will be consummated within 15 days after the expiration of the Institution Election Period. If more event less than one Institutional Stockholder elects to purchase all of the Restricted Securities Remaining Partners determine to purchase the interest to be transferredsold within the said forty-five (45) day period, each Institutional Stockholder electing those Remaining Partners who elect to purchase such Restricted Securities will be entitled shall have the right within the ten (10) day period to purchase a PRO RATA portion (based upon the respective numbers of shares of Restricted Securities then held by such Institutional Stockholders (on a fully diluted basis)) of the Restricted Securities proposed interest to be transferredsold in the same proportion as the Partner Percentage of each purchasing Remaining Partner bears to the total Partner Percentage of all such purchasing Remaining Partners. If none of the Institutional Stockholders elects remaining Partners elect to purchase all the seller Partner's interest to be sold within the said time periods, the selling Partner shall be free for a period of thirty (30) days thereafter to sell the interest to be sold to the proposed purchaser on the same terms and conditions contained in the notice to the Remaining Partners of the Restricted Securities being offeredproposed sale. If the said sale is not effected within the said thirty (30) day period, any subsequent sale must again comply with the Transferring Stockholder may, within 90 days after the expiration requirements of the Institution Election Period, Transfer the Restricted Securities specified in the Offer Notice to this Section. Settlement under any purchase agreement entered into by one or more third parties specified in the Offer Notice at a price and on terms no more favorable to the transferees than the price and terms offered to the Institutional Stockholders in the Offer Notice, PROVIDED that no such Transfer may be completed except in compliance with Section 3.3 and unless each of such transferees shall have executed and delivered an Instrument of Accession as a condition precedent to the transfer thereof. If the Transferring Stockholder fails to consummate such transfer within the 90 day period after the expiration of the Institution Election Period, any subsequent proposed Transfer Remaining Partners pursuant to this Section shall occur within ninety (90) days of the Restricted Securities shall be once again subject to the provisions execution of this Section 3.2a written purchase agreement.

First Right of Purchase. Any Institutional Stockholder (other than Bate▇a) ▇▇y Subject to the provisions of Section 3.1 hereof, any Crossroads Investor may Transfer any interest in any Restricted Crossroads Securities pursuant to any transferee PROVIDED that any such Transfer shall be made a Third Party Sale in accordance with the provisions of this Section 3.2 and Sections 3.3 and 3.4 and in compliance with the requirements any applicable federal or state securities lawsSection 3.3. At least 30 45 days prior to making any such Transfer of any Institutional StockThird Party Sale, the transferring Institutional Stockholder Crossroads Investor (the "Transferring StockholderShareholder") will deliver a written notice (the "Offer Notice") to each of the other Institutional StockholdersCompany and to the Series E Investor Shareholders (the "Non-Transferring Shareholders"). The Offer Notice will disclose in reasonable detail the proposed number of shares of Restricted the Crossroads Securities to be transferred, the type class or classes of such Restricted Crossroads Securities, the proposed price, terms and conditions of the Transfer and the identity of the transferee. Any Institutional Stockholder The Non-Transferring Shareholders may elect (by itself or through an Affiliate of such Institutional Stockholder) to purchase all (but not less than all) of the shares of any Restricted Crossroads Securities specified in any the Offer Notice given by a Transferring Stockholder at the price and on the terms specified therein by delivering written notice of such election to the Transferring Stockholder Shareholder and the Company within 30 days after the delivery of such Offer Notice (the "Institution Shareholder Election Period"). If any of the Institutional Stockholders elects Non-Transferring Shareholders elect to purchase all of such Restricted Crossroads Securities, the Transfer of the Restricted Crossroads Securities will be consummated within 15 30 days after the expiration of the Institution Shareholder Election Period. If more than one Institutional Stockholder Non-Transferring Shareholder elects to purchase all of the Restricted Crossroads Securities to be transferred, each Institutional Stockholder Non-Transferring Shareholder electing to purchase such Restricted Crossroads Securities will be entitled to purchase from the Transferring Shareholder a PRO RATA pro rata portion (based upon the respective numbers of shares of Restricted Securities then held by such Institutional Stockholders Non-Transferring Shareholders (on a fully fully-diluted and converted basis)) of the Restricted Crossroads Securities proposed to be transferred. If none of the Institutional Stockholders elects Non-Transferring Shareholders do not elect to purchase all of the Restricted Crossroads Securities being offered, the Transferring Stockholder Shareholder may, within 90 days after the expiration of the Institution Shareholder Election Period, Transfer complete the Restricted Third Party Sale of the Crossroads Securities specified in the Offer Notice to one or more third parties specified in the Offer Notice at a price and on terms no more favorable to the transferees than the price and terms offered to the Institutional Stockholders Non-Transferring Shareholders in the Offer Notice, PROVIDED provided that no such Transfer Third Party Sale may be completed except in compliance with Section 3.3 and unless each of such transferees shall have executed and delivered an Instrument of Accession as a condition precedent to the transfer thereof. If the Transferring Stockholder Shareholder fails to consummate such transfer Third Party Sale within the 90 day period after the expiration of the Institution Shareholder Election Period, any subsequent proposed Transfer of the Restricted Crossroads Securities shall be once again subject to the provisions of this Section 3.2.