Common use of Preemptive Right Clause in Contracts

Preemptive Right. The Company hereby grants to each Stockholder the right to purchase, pro rata, all or any part of New Securities (as defined in Section 3.1 below) which the Company may, from time to time, propose to sell and issue. A pro rata portion, for purposes of this Agreement, is the ratio of the number of shares of Common Stock held by such Stockholder immediately prior to any purchase to the total number of shares of Common Stock of the Company issued and outstanding at such time. Each Stockholder shall have a right of over-allotment such that if any person fails to exercise its right hereunder to purchase its pro rata portion of New Securities, the other Stockholders may purchase the non-purchasing Stockholder's portion on a pro rata basis within five (5) business days from the date it receives notice from the Company that such person has failed to exercise its right hereunder to purchase its pro rata share of New Securities. 3.1. For the purpose of this Section 3, "New Securities" shall mean shares of Common Stock of the Company of any kind whether now or hereinafter authorized, and rights, options or wan-ants to purchase such Common Stock, and securities of any kind whatsoever that are, or may become, convertible into or exchangeable for such Common Stock; provided, however, that the preemptive right shall apply at the time of issuance of the right, warrant, option or convertible or exchangeable security and not to the conversion, exchange or exercise thereof, and provided, further, that the term "New Securities" shall not include: (A) the securities of the Company issued pursuant to the terms of the Subscription Agreements, the Purchase Agreement or the Stock Purchase Agreement, (B) any Common Stock of the Company offered pursuant to a registration statement which has been declared effective after the date hereof under the Securities Act, whereby such securities shall be publicly traded on a national securities exchange or quoted on the National Association of Securities Dealers, Inc., Automatic Quotation System or National Market System ("NASDAQ) or otherwise broadly distributed to the general public (a "Qualified Public Offering"), (C) an issuance of Shares to a seller as consideration for an acquisition by the Company of any other Person or all or substantially all of the business and assets of any other Person or a division of any Person, (D) shares of Common Stock of the Company or options to purchase such Common Stock granted or to be granted in connection with the Stock Option Plan (provided that such Shares in the aggregate may not exceed seventeen and one half percent (17.5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after consummation of all transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement) and (E) the issuance of Shares in connection with any debt or preferred stock financing of the Company (provided that such Shares in the aggregate issued in connection with such financings may not exceed five percent (5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after the consummation of the transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement).

Preemptive Right. The Company hereby grants So long as SUBSCRIBER beneficially owns at least 30% of the Shares and the common stock underlying the Purchase Option (considered on a fully-diluted basis whether or not then exercisable) sold to each Stockholder the right SUBSCRIBER under this Subscription Agreement, if ISSUER elects to purchasesell, pro ratafor cash, all or any part of New Securities (as defined in Section 3.1 belowhereinafter defined) which at any time prior to the Company may, from time to time, propose to sell and issue. A pro rata portion, for purposes six-year anniversary of the date of this Subscription Agreement, is SUBSCRIBER will have the ratio of right to purchase from ISSUER on the same terms as the proposed sale, that number of securities being offered as will maintain its then percentage ownership of ISSUER's Common Stock calculated on a fully diluted basis, but based solely on the Shares purchased hereunder and underlying the Purchase Option and not including any additional shares of Common Stock held which may be owned by such Stockholder immediately SUBSCRIBER. ISSUER shall give notice to the SUBSCRIBER in writing ("ISSUER Notice") at least ten business days prior to any purchase the proposed closing date of such proposed sale. The ISSUER Notice shall describe in reasonable detail the proposed sale including, without limitation, the nature and number of securities to be sold, the nature of such sale, the consideration to be paid, and the name and address of the prospective purchasers ("Buyer"). Upon the giving of the ISSUER Notice, SUBSCRIBER shall have the right, but not the obligation, exercisable by written notice to the total number of shares of Common Stock ISSUER within five business days after receipt of the Company issued and outstanding at such time. Each Stockholder shall have a right of over-allotment such that if any person fails ISSUER Notice, to exercise indicate to ISSUER its right hereunder desire to purchase its pro rata portion permitted number of New Securities, securities being sold in the other Stockholders may proposed sale on the same terms and conditions as ISSUER is selling the securities in the proposed sale. The SUBSCRIBER will purchase the non-purchasing Stockholder's portion on a pro rata basis within five (5) business days from securities to be offered and purchased under this section at the date it receives notice from same time as the Company that such person has failed to exercise its right hereunder to purchase its pro rata share closing of New Securities. 3.1the proposed sale. For the purpose purposes of this Section 38, "New Securities" shall mean means any shares of capital stock of the ISSUER, including Common Stock of the Company of any kind and preferred stock, whether now authorized or hereinafter authorizednot, and rights, options or wan-ants warrants to purchase such said shares of Common StockStock or preferred stock of the ISSUER, and securities of any kind type whatsoever that are, or may become, convertible into said shares of Common Stock or exchangeable for such Common Stockpreferred stock; provided, however, that the preemptive right shall apply at the time of issuance of the right, warrant, option or convertible or exchangeable security and not to the conversion, exchange or exercise thereof, and provided, further, that the term "New Securities" shall does not include: include (Ai) the securities shares of Common Stock issuable upon exercise of the Company issued pursuant Purchase Option, (ii) securities issuable upon exercise or conversion securities outstanding on the date hereof, (iii) securities offered to the terms of the Subscription Agreements, the Purchase Agreement or the Stock Purchase Agreement, (B) any Common Stock of the Company offered public generally pursuant to a registration statement which has been declared effective after the date hereof under the Securities Act, whereby such (iv) securities shall be publicly traded on a national securities exchange issued to employees, officers or quoted on directors of, or consultants to, the National Association ISSUER, or issued or issuable to banks or other institutional lenders or lessors in connection with capital asset leases or borrowings for the acquisition of Securities Dealerscapital assets, Inc.landlords, Automatic Quotation System or National Market System ("NASDAQ) or otherwise broadly distributed other providers of goods and services to the general public ISSUER, if pursuant to any arrangement approved by the board of directors of the ISSUER (a "Qualified Public Offering"including securities issued upon exercise or conversion of any such securities), (Cv) securities issued for cash in any private placement by ISSUER subject to an agreement entered into within ten business days after the date of this Subscription Agreement (including securities issued upon exercise or conversion of any such securities), or (vi) any issuance of Shares to a seller as consideration for an acquisition by the Company of any other Person or all or substantially all capital stock of the business and assets ISSUER upon the exercise or conversion of any other Person or a division of any Personderivative securities, (D) shares of Common Stock of the Company or options to purchase such Common Stock granted or to be granted in connection with the Stock Option Plan (provided that such Shares in the aggregate may not exceed seventeen and one half percent (17.5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after consummation of all transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement) and (E) the issuance of Shares which triggered the pre- emptive rights set forth in connection with any debt or preferred stock financing of the Company (provided that such Shares in the aggregate issued in connection with such financings may not exceed five percent (5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after the consummation of the transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement)this Section 8.

Preemptive Right. From the First Closing Date until the earlier to occur of (a) the first anniversary of the First Closing Date and (b) the first date on which the Investor ceases to beneficially own 5% of the issued and outstanding Common Stock, the Company and its subsidiaries shall not issue or sell any Subject Securities without first complying with this Section 6(f). The Company hereby grants to each Stockholder the Investor the preemptive right to purchase, pro rata, all or any part of New the Subject Securities (as defined in Section 3.1 below) which that the Company or any of its subsidiaries may, from time to time, propose to sell and or issue. A In the event that Subject Securities are offered or sold as part of a unit with other securities, the Investor must, if the Investor elects to exercise its preemptive right to purchase the Subject Securities, exercise its preemptive right with respect to all of the securities comprising part of the units on the same terms that the Company proposes to offer such units to other parties. The Investor’s pro rata portion, share for purposes of this Agreement, Section 6(f) is the ratio of that the number of shares of Common Stock held beneficially owned by such Stockholder the Investor immediately prior before giving effect to any purchase the proposed issuance of the Subject Securities bears to the total number of shares of Common Stock then issued and outstanding. In the event the Company proposes to issue or sell Subject Securities, it shall give the Investor written notice of its intention, describing the type of Subject Securities and the price and terms upon which the Company proposes to issue or sell the Subject Securities. In the event that the Subject Securities include securities the acquisition of which by the Investor would result in the Investor becoming an “Acquiring Person” or similar status within the meaning of the Rights Agreement of the Company issued and outstanding at dated December 11, 2007 (as amended, the “Rights Agreement”), the Company shall take such timeaction as is necessary, including amending the Rights Agreement or structuring the proposed issuance of Subject Securities, so that the Investor will not become such an Acquiring Person or similar status. Each Stockholder The Investor shall have a right of over-allotment such that if any person fails to exercise its right hereunder to purchase its pro rata portion of New Securities, the other Stockholders may purchase the non-purchasing Stockholder's portion on a pro rata basis within five (5) business days Business Days from the date it receives of such notice from the Company that such person has failed to exercise its right hereunder irrevocably agree to purchase up to its pro rata share of New Securities. 3.1the Subject Securities for the price and upon the terms (including brokerage, transaction, acquisition, advisory, due diligence, origination or similar fees, but excluding expense reimbursements and underwriting discounts, fees or commissions) specified in the notice by giving written notice to the Company stating the quantity of Subject Securities agreed to be purchased. For The Investor acknowledges that the purpose of this Section 3, "New Securities" shall mean shares of Common Stock acquisition of the Company Subject Securities may be subject to stockholder approval under the rules of the New York Stock Exchange and subject to any kind whether now or hereinafter authorized, and rights, options or wan-ants required approval from any Governmental Entity. In the event the Investor fails to purchase exercise such Common Stock, and securities of any kind whatsoever that are, or may become, convertible into or exchangeable for such Common Stock; provided, however, that the preemptive right within such five Business Day period, the Company shall apply have 90 days to sell the Subject Securities not agreed to be purchased by the Investor at the time of issuance of same price and upon the rightsame terms specified in the Company’s notice described above. In the event the Company has not sold the Subject Securities within such ninety-day period, warrant, option or convertible or exchangeable security and not to the conversion, exchange or exercise thereof, and provided, further, that the term "New Securities" Company shall not include: (A) the securities of the Company issued pursuant to the terms of the Subscription Agreements, the Purchase Agreement thereafter issue or the Stock Purchase Agreement, (B) sell any Common Stock of the Company offered pursuant to a registration statement which has been declared effective after the date hereof under the Subject Securities Act, whereby without first offering such securities shall be publicly traded on a national securities exchange or quoted on the National Association of Securities Dealers, Inc., Automatic Quotation System or National Market System ("NASDAQ) or otherwise broadly distributed to the general public (a "Qualified Public Offering"), (C) an issuance of Shares to a seller as consideration for an acquisition by the Company of any other Person or all or substantially all of the business and assets of any other Person or a division of any Person, (D) shares of Common Stock of the Company or options to purchase such Common Stock granted or to be granted in connection with the Stock Option Plan (provided that such Shares in the aggregate may not exceed seventeen and one half percent (17.5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after consummation of all transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement) and (E) the issuance of Shares in connection with any debt or preferred stock financing of the Company (manner provided that such Shares in the aggregate issued in connection with such financings may not exceed five percent (5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after the consummation of the transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement)above.

Preemptive Right. The Company hereby grants (a) Each Purchaser shall be entitled to each Stockholder the a right of first refusal to purchase, on a pro ratarata basis, all or any part of any Series B Convertible Preferred Stock issued by Engage after the date hereof (the "New Securities (as defined in Section 3.1 Securities"), subject to the terms and conditions set forth below) which the Company may, from time to time, propose to sell and issue. A Such Purchaser's pro rata portionshare shall equal a fraction, for purposes the numerator of this Agreement, which is the ratio of the number of shares of Common Series B Preferred Stock then issued and outstanding and held by such Stockholder immediately prior to any purchase to Purchaser, and the denominator of which is the total number of shares of Common Series B Preferred Stock of the Company then issued and outstanding at such time. Each Stockholder shall have a right of over-allotment such that if any person fails outstanding. (b) In the event Engage intends to exercise its right hereunder to purchase its pro rata portion of issue New Securities, it shall give each Purchaser who is then a record holder of Engage Shares (a "Holder") written notice of such intention, describing the other Stockholders may purchase type of New Securities to be issued, the non-purchasing Stockholder's portion on a pro rata basis within five price thereof and the general terms upon which Engage proposes to effect such issuance. Each such Holder shall have twenty (520) business days from the date it receives of any such notice from the Company that such person has failed to exercise its right hereunder agree to purchase all of its pro rata share of such New SecuritiesSecurities for the price and upon the general terms and conditions specified in Engage's notice by giving written notice to Engage stating the quantity of New Securities to be so purchased. 3.1. For (c) In the purpose event the Holders fail to exercise the foregoing right of this Section 3first refusal with respect to any New Securities within such 20-day period, "Engage may within 120 days thereafter sell any or all of such New Securities" shall mean shares of Common Stock of Securities not agreed to be purchased by the Company of any kind whether now or hereinafter authorizedHolders, at a price and rights, options or wan-ants to purchase such Common Stock, and securities of any kind whatsoever that are, or may become, convertible into or exchangeable for such Common Stock; provided, however, that the preemptive right shall apply at the time of issuance of the right, warrant, option or convertible or exchangeable security and not upon general terms no more favorable to the conversionpurchasers thereof than specified in the notice given to each Holder pursuant to paragraph (b) above. In the event Engage has not so sold such New Securities within such 120-day period, exchange or exercise thereof, and provided, further, that the term "New Securities" Engage shall not include: (A) the securities of the Company issued pursuant thereafter issue or sell any New Securities without first offering such New Securities to the terms of the Subscription Agreements, the Purchase Agreement or the Stock Purchase Agreement, (B) any Common Stock of the Company offered pursuant to a registration statement which has been declared effective after the date hereof under the Securities Act, whereby such securities shall be publicly traded on a national securities exchange or quoted on the National Association of Securities Dealers, Inc., Automatic Quotation System or National Market System ("NASDAQ) or otherwise broadly distributed to the general public (a "Qualified Public Offering"), (C) an issuance of Shares to a seller as consideration for an acquisition by the Company of any other Person or all or substantially all of the business and assets of any other Person or a division of any Person, (D) shares of Common Stock of the Company or options to purchase such Common Stock granted or to be granted in connection with the Stock Option Plan (provided that such Shares Holders in the aggregate may not exceed seventeen and one half percent (17.5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after consummation of all transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement) and (E) the issuance of Shares in connection with any debt or preferred stock financing of the Company (manner provided that such Shares in the aggregate issued in connection with such financings may not exceed five percent (5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after the consummation of the transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement)above.

Preemptive Right. The Company hereby grants So long as SUBSCRIBER and its affiliates beneficially own at least 30% of the Shares and the common stock underlying the Purchase Option sold to each Stockholder the right SUBSCRIBER under this Subscription Agreement, if ISSUER elects to purchasesell, pro ratafor cash, all or any part of New Securities (as defined in Section 3.1 belowhereinafter defined) which at any time prior to the Company may, from time to time, propose to sell and issue. A pro rata portion, for purposes six year anniversary of the date of this Subscription Agreement, is SUBSCRIBER will have the ratio of right to purchase from ISSUER on the same terms as the proposed sale, up to that number of securities being offered as will maintain its then percentage ownership of ISSUER's Common Stock calculated on a fully diluted basis, but based solely on the Shares purchased hereunder and underlying the Purchase Option and not including any additional shares of Common Stock held which may be owned by such Stockholder immediately SUBSCRIBER. ISSUER shall give notice to the SUBSCRIBER in writing ("ISSUER Notice") at least ten business days prior to any purchase the proposed closing date of such proposed sale. The ISSUER Notice shall describe in reasonable detail the proposed sale including, without limitation, the nature and number of securities to be sold, the nature of such sale, the consideration to be paid, and the name and address of the prospective purchasers ("Buyer"). Upon the giving of the ISSUER Notice, SUBSCRIBER shall have the right, but not the obligation, exercisable by written notice to the total number of shares of Common Stock ISSUER within five business days after receipt of the Company issued and outstanding at such time. Each Stockholder shall have a right of over-allotment such that if any person fails ISSUER Notice, to exercise indicate to ISSUER its right hereunder desire to purchase its pro rata portion permitted number of New Securities, securities being sold in the other Stockholders may proposed sale on the same terms and conditions as ISSUER is selling the securities in the proposed sale. The SUBSCRIBER will purchase the non-purchasing Stockholder's portion on a pro rata basis within five (5) business days from securities to be offered and purchased under this section at the date it receives notice from same time as the Company that such person has failed to exercise its right hereunder to purchase its pro rata share closing of New Securities. 3.1the proposed sale. For the purpose purposes of this Section 38, "New Securities" shall mean means any shares of capital stock of the ISSUER, including Common Stock of the Company of any kind and preferred stock, whether now authorized or hereinafter authorizednot, and rights, options or wan-ants warrants to purchase such said shares of Common StockStock or preferred stock of the ISSUER, and securities of any kind type whatsoever that are, or may become, convertible into said shares of Common Stock or exchangeable for such Common Stockpreferred stock; provided, however, that the preemptive right shall apply at the time of issuance of the right, warrant, option or convertible or exchangeable security and not to the conversion, exchange or exercise thereof, and provided, further, that the term "New Securities" shall does not include: include (Ai) the securities shares of Common Stock issuable upon exercise of the Company issued pursuant Purchase Option, (ii) securities issuable upon exercise or conversion of securities outstanding on the date hereof, (iii) securities offered to the terms of the Subscription Agreements, the Purchase Agreement or the Stock Purchase Agreement, (B) any Common Stock of the Company offered public generally pursuant to a registration statement which has been declared effective after the date hereof under the Securities Act, whereby such (iv) securities shall be publicly traded on a national securities exchange issued to employees, officers or quoted on directors of, or consultants to, the National Association ISSUER, or issued or issuable to banks or other institutional lenders or lessors in connection with capital asset leases or borrowings for the acquisition of Securities Dealerscapital assets, Inc.landlords, Automatic Quotation System or National Market System ("NASDAQ) or otherwise broadly distributed other providers of goods and services to the general public ISSUER, in each case, if pursuant to any arrangement approved by the board of directors of the ISSUER (a "Qualified Public Offering"including securities issued upon exercise or conversion of any such securities), (Cv) securities issued for cash in any private placement by ISSUER subject to an agreement entered into within ten business days after the date of this Subscription Agreement (including securities issued upon exercise or conversion of any such securities), or (vi) any issuance of Shares to a seller as consideration for an acquisition by the Company of any other Person or all or substantially all capital stock of the business and assets ISSUER upon the exercise or conversion of any other Person or a division of any Personderivative securities, (D) shares of Common Stock of the Company or options to purchase such Common Stock granted or to be granted in connection with the Stock Option Plan (provided that such Shares in the aggregate may not exceed seventeen and one half percent (17.5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after consummation of all transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement) and (E) the issuance of Shares which triggered the pre-emptive rights set forth in connection with any debt or preferred stock financing of the Company (provided that such Shares in the aggregate issued in connection with such financings may not exceed five percent (5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after the consummation of the transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement)this Section 8.

Preemptive Right. The (i) If the Company hereby grants proposes to issue any additional Ordinary Shares or Equity Securities or Equity Equivalents that are convertible or exercisable into Ordinary Shares to the MDCP Co-Investors or any of their respective Affiliates (the "NEW SHARES") after the date hereof, each Stockholder Investor shall have the right to purchase, pro rata, purchase all or any part of New Securities (as defined in Section 3.1 below) which the Company may, from time to time, propose to sell and issue. A pro rata portion, for purposes of this Agreement, is the ratio a portion of the number New Shares equal to the product of shares of Common Stock held by such Stockholder immediately prior to any purchase to (a) the total number of shares New Shares proposed to be issued, MULTIPLIED BY (b) a fraction, (I) the numerator of Common Stock which is the number of Class D Convertible Shares (if any) and Ordinary Shares held by such shareholder as of the date hereof and (II) the denominator of which is the total number of Class D Convertible Shares and Ordinary Shares which are held by all shareholders immediately prior to the proposed issuance. (ii) The Company issued shall give each Investor written notice of any proposed issuance of New Shares (the "OPTION ISSUANCE NOTICE") describing the price and outstanding at terms upon which the Company proposes to issue and sell such timeNew Shares. Each Stockholder shall have a During the 20-day period following the date of delivery of the Option Issuance Notice (the "ELECTION PERIOD") each Investor may exercise his, her or its right to purchase New Shares in accordance with this paragraph 3C, for the price and upon the terms and conditions specified in the Option Issuance Notice by giving written notice to the Company and stating therein the quantity of over-allotment such New Shares to be purchased. (iii) In the event that if any person Investor fails to exercise its right hereunder to purchase its pro rata portion of subscribe for any New SecuritiesShares which it is entitled to subscribe for under this paragraph 3C, the Company shall have 90 days following the Election Period to issue or enter into an agreement to issue the New Shares not elected to be subscribed for by the other Stockholders may purchase Investors at the non-purchasing Stockholder's portion on a pro rata basis within five (5) business days from price and upon terms not substantially more favorable to the date it receives notice from prospective subscribers for such New Shares than those specified in the Option Issuance Notice. In the event the Company that has not issued the New Shares or entered into an agreement to issue the New Shares within the said 90-day period, the Company shall not thereafter issue otherwise transfer such person has failed New Shares without first offering such New Shares to exercise its right hereunder the Investors in the manner provided in this paragraph 3C. (iv) If an Investor elects to purchase its pro rata share subscribe for any New Shares pursuant to this paragraph 3C the closing of New Securitiessuch subscription shall occur at such time and at such location selected by the Company. 3.1. For (v) Notwithstanding anything else to the purpose contrary set forth herein, the provisions of this Section 3, "New Securities" shall mean shares of Common Stock of the Company of any kind whether now or hereinafter authorized, and rights, options or wan-ants to purchase such Common Stock, and securities of any kind whatsoever that are, or may become, convertible into or exchangeable for such Common Stock; provided, however, that the preemptive right shall apply at the time of issuance of the right, warrant, option or convertible or exchangeable security and not to the conversion, exchange or exercise thereof, and provided, further, that the term "New Securities" paragraph 3C shall not include: (A) the securities of the Company issued pursuant apply to the terms of the Subscription Agreements, the Purchase Agreement or the Stock Purchase Agreement, (B) any Common Stock of the Company offered pursuant to a registration statement which has been declared effective after the date hereof under the Securities Act, whereby such securities shall be publicly traded on a national securities exchange or quoted on the National Association of Securities Dealers, Inc., Automatic Quotation System or National Market System ("NASDAQ) or otherwise broadly distributed to the general public (a "Qualified Public Offering"), (C) an issuance of Shares to a seller as consideration for an acquisition by the Company of any other Person or all or substantially all of the business and assets of any other Person or a division of any Person, (D) shares of Common Stock of the Company or options to purchase such Common Stock granted or to be granted in connection with the Stock Option Plan (provided that such Shares in the aggregate may not exceed seventeen and one half percent (17.5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after consummation of all transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement) and (E) the issuance of Shares in connection with any debt or preferred stock financing of the Company (provided that such Shares in the aggregate issued in connection with such financings may not exceed five percent (5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after the consummation of the transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement)Excluded Issuances.

Preemptive Right. The (a) In the event the Company hereby grants completes the sale, other than sales pursuant to each Stockholder any stock option, stock purchase or similar employee benefit plan approved by the right to purchaseCompany’s Board of Directors, pro rata, all (a “Pre-Emptive Sale”) on or before the date which is one year after the Initial Closing Date or any part Subsequent Closing Date in one or a series of New Securities (as defined related transactions Additional Shares resulting in Section 3.1 below) which gross proceeds to the Company mayof $100,000,000 or more, the Company shall deliver to the Investor an offer (the “Offer”) to issue and sell to the Investor a number of Common Shares (the “Pre-Emptive Shares”) such that the Investor may maintain its relative Common Share ownership position in the Company, on a fully diluted basis. The Offer shall state that the Company offers to issue and sell to the Investor the Pre-Emptive Shares and shall specify their number and terms (including purchase price, which shall be equal to the weighted average price in the Pre-Emptive Sale(s)). The Offer shall remain open and irrevocable for a period of 30 days (the “Pre-Emptive Period”) from time to time, propose to sell and issuethe date of its delivery. A pro rata portion, for For purposes of this AgreementSection 5.5, is “relative Common Share ownership position” will be calculated as to all WLR Funds holding Securities in the ratio aggregate and WLR will be entitled to allocate by written notice to the Company the aggregate preemptive rights of the number of shares of Common Stock held Investor among the WLR Funds. (b) The Investor may accept the Offer by such Stockholder immediately prior to any purchase delivering to the total Company a notice (the “Purchase Notice”) within the Pre-Emptive Period. The Purchase Notice shall state the number (the “Pre-Emptive Number”) of shares Pre-Emptive Shares the Investor desires to purchase. (c) The issuance of Common Stock any Pre-Emptive Shares shall be made on a business day, as designated by the Company, not less than 10 and not more than 30 days after expiration of the Company issued Pre-Emptive Period on terms and outstanding at such time. Each Stockholder shall have conditions consistent with this Section. (d) In the case of a right sale of over-allotment such that if any person fails to exercise its right hereunder to purchase its pro rata portion of New Securitiessecurities for a consideration in whole or in part other than cash, including securities acquired in exchange therefor (other than securities by their terms so exchangeable), the consideration other Stockholders may purchase than cash shall be deemed to be the non-purchasing Stockholder's portion on a pro rata basis within five (5) business days from fair value thereof as determined by the date it receives notice from the Company that such person has failed to exercise its right hereunder to purchase its pro rata share Board of New Securities. 3.1. For the purpose of this Section 3, "New Securities" shall mean shares of Common Stock of the Company of any kind whether now or hereinafter authorized, and rights, options or wan-ants to purchase such Common Stock, and securities of any kind whatsoever that are, or may become, convertible into or exchangeable for such Common StockDirectors; provided, however, that such fair value as determined by the preemptive right Board of Directors shall apply at not exceed the time of issuance aggregate market price of the right, warrant, option or convertible or exchangeable security and not to the conversion, exchange or exercise thereof, and provided, further, that the term "New Securities" shall not include: (A) the securities being offered as of the date the Board of Directors authorizes the offering of such securities. (e) Notwithstanding the foregoing, the number of Pre-Emptive Shares deliverable by the Company issued at any time pursuant to the terms foregoing paragraph shall be limited to the maximum number of Common Shares that may be issued without approval of the Subscription Agreements, the Purchase Agreement or the Stock Purchase Agreement, (B) any Common Stock of the Company offered Company’s shareholders pursuant to a registration statement which has been declared effective after the date hereof under the Securities Act, whereby such securities shall be publicly traded on a national securities exchange or quoted on the National Association of Securities Dealers, Inc., Automatic Quotation System or National Market System ("NASDAQ) or otherwise broadly distributed to the general public (a "Qualified Public Offering"), (C) an issuance of Shares to a seller as consideration for an acquisition by the Company of any other Person or all or substantially all of the business and assets of any other Person or a division of any Person, (D) shares of Common Stock of the Company or options to purchase such Common Stock granted or to be granted in connection with the Stock Option Plan (provided that such Shares in the aggregate may not exceed seventeen and one half percent (17.5%Rule 312.03(c) of the outstanding shares of NYSE Listed Company Manual taking into account the Common Stock of the Company On a Fully Diluted Basis immediately after consummation of all transactions contemplated Initial Shares, any Subsequent Shares theretofore issued, any other Reset Shares theretofore issued and any Pre-Emptive Shares theretofore issued. (f) The rights set forth in this Section 5.4 may not be assigned or transferred by the Purchase Agreement and the Stock Purchase Agreement) and (E) the issuance of Shares in connection with any debt or preferred stock financing of the Company (provided that such Shares in the aggregate issued in connection with such financings may not exceed five percent (5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after the consummation of the transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement)Investor.

Preemptive Right. The Company hereby grants to For so long as any Preferred Stock remains outstanding, each Stockholder Investor holding Preferred Stock shall have the right (the "Participation Right") to purchase, pro rata, all or purchase such Investor's Pro Rata Amount of any part of New Securities (as defined in Section 3.1 below) which Portion that the Company may, may from time to time, time propose to sell and issue. A pro rata portionissue after the date hereof, for purposes at the price and upon the general terms specified in the New Issue Notice (as defined below) regarding such New Securities and otherwise on the following terms: (a) Whenever the Company proposes to issue and sell any New Securities, the Company shall give each Investor written notice (a "New Issue Notice") describing the type and amount of this AgreementNew Securities proposed to be issued and the price and general terms upon which the Company proposes to issue such New Securities, is specifying a proposed closing date and specifying in each case the ratio New Securities Portion and recipient's Pro Rata Amount as of the date of the New Issue Notice. (b) Each Investor may exercise its Participation Right with respect to any proposed New Securities by notice to the Company, given within 15 days after the Investors shall have received the New Issue Notice describing the New Securities. (c) If any Investor does not exercise its Participation Right with respect to any proposed New Securities within the 15 day period, then within 1 business day after the expiration of such 15 day period, the Company shall notify each Investor who proposed to purchase not less than such Investor's Pro Rata Amount of such New Securities of the number of shares of Common Stock New Securities which remain available for purchase. Upon receipt of the notice specified in the preceding sentence, each such Investor shall have the additional Participation Right to purchase such Investor's Pro Rata Amount of the remaining New Securities Portion (considering the Shares held by such Stockholder immediately prior to any purchase to the total number of shares of Common Stock all Investors who purchased less than their Pro Rata Amount of the Company New Securities not to be issued and outstanding at such timefor purposes of computing the Pro Rata Amount), exercisable by written notice delivered to the Company within 2 business days after receipt of the notice of the availability of the balance of the New Securities. Each Stockholder shall have a Such Investors also may allocate the right of over-allotment such that if any person fails to exercise its right hereunder to purchase its pro rata portion of the New Securities between or among them in any proportion they choose as reflected in a written notice to the Company within such 15 day or 2 business day period, as the case may be. (d) The Company may sell the New Securities not committed for by Investors at a price and upon general terms no more favorable to the purchasers than those specified in the New Issue Notice with regard to such New Securities, at any time during (and only during) the other Stockholders may purchase 90 days following the non-purchasing Stockholder's portion on a pro rata basis within five (5) business days from expiration of the date it receives last notice from the Company that such person has failed to exercise its right hereunder to purchase its pro rata share of New Securitiesperiod specified in Section 3.6(c). 3.1. For the purpose (e) The sale of any New Securities to Investors pursuant to this Section 33.6 shall be closed on the same terms, "New Securities" shall mean shares of Common Stock of at the Company same place as, and simultaneously with, the sale of any kind whether now or hereinafter authorized, and rights, options or wan-ants such New Securities to purchase such Common Stock, and securities of any kind whatsoever that are, or may become, convertible into or exchangeable for such Common Stock; provided, however, that the preemptive right shall apply at the time of issuance of the right, warrant, option or convertible or exchangeable security and not to the conversion, exchange or exercise thereof, and provided, further, that the term "New Securities" shall not include: (A) the securities of the Company issued pursuant to the terms of the Subscription Agreements, the Purchase Agreement or the Stock Purchase Agreement, (B) any Common Stock of the Company offered pursuant to a registration statement which has been declared effective after the date hereof under the Securities Act, whereby such securities shall be publicly traded on a national securities exchange or quoted on the National Association of Securities Dealers, Inc., Automatic Quotation System or National Market System ("NASDAQ) or otherwise broadly distributed to the general public (a "Qualified Public Offering"), (C) an issuance of Shares to a seller as consideration for an acquisition by the Company of any other Person or all or substantially all of the business and assets of any other Person or a division of any Person, (D) shares of Common Stock of the Company or options to purchase such Common Stock granted or to be granted in connection with the Stock Option Plan purchasers (provided that such Shares the closing shall not take place earlier than the proposed closing date specified in the aggregate may not exceed seventeen and one half percent (17.5%) of applicable New Issue Notice without the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after consummation consent of all transactions contemplated by the Purchase Agreement and the Stock Purchase Agreement) and (E) the issuance of Shares in connection with any debt or preferred stock financing of the Company (provided that such Shares in the aggregate issued in connection with such financings may not exceed five percent (5%) of the outstanding shares of the Common Stock of the Company On a Fully Diluted Basis immediately after the consummation of the transactions contemplated by the Purchase Agreement and the Stock Purchase Agreementparticipating Investors).