Common use of Right of First Purchase Clause in Contracts

Right of First Purchase. (a) The Company recognizes that Buyer and its Affiliates are currently engaged and may in the future engage in the same or similar activities or lines of business as the Company’s and its Subsidiaries’ business, which activities or lines of business may compete with the Company’s and its Subsidiaries’ business, and that Buyer and its Affiliates will continue in such businesses following the date hereof. Accordingly, subject only to Section 6.02(b) and the provisions of any employment agreement, consulting agreement or other written agreement with the Company, Buyer, its Affiliates, and any agent, representative, officer, director, employee of Buyer or any of its Affiliates, may engage in, or possess an interest in, other business ventures of every nature and description, independently or with others, whether or not such other enterprises shall be in competition with or operating the same or similar businesses as the Company or any of its Subsidiaries, and no such Person shall have any obligation or duty to bring business opportunities to the attention of the Company or any of its Subsidiaries, other than those business opportunities that were offered to or intended to be directed towards the Company or its Subsidiaries or were made aware or available to such Person solely as a result of such Person’s position with, or during the course of the performance of such Person’s duties to, the Company or any of its Subsidiaries. (b) From the date hereof until the earliest of (i) the first date upon which Buyer and its Affiliates no longer Beneficially Own Voting Securities representing at least 15% of the Total Voting Power, (ii) the date of consummation by Buyer of any 100% Acquisition Proposal permitted under the terms of this Agreement and (iii) any termination of this Agreement pursuant to Section 12.01 (the “First Purchase Period”), Buyer agrees that it will not and will not permit any of its Affiliates to acquire, directly or indirectly, for its own account, solely or jointly with others, control of any Competing Business without first offering to the Company the right to acquire such Competing Business in the manner provided in Section 6.02(c) below. (c) If, at any time during the First Purchase Period, Buyer desires to acquire control of a Competing Business, it shall deliver a written notice to the Company (the “First Purchase Notice”) identifying the Competing Business and setting forth, to the extent then known by Buyer, the material terms upon which such acquisition is proposed to be made. Not later than ten Business Days after receipt of a First Purchase Notice, the Company shall deliver to Buyer a written response (a “Purchase Response Notice”) indicating whether the Company desires to make the proposed acquisition. If the Company expresses an interest in making the proposed acquisition, Buyer will use all commercially reasonable efforts (which shall not include the expenditure of monies or the incurrence of liabilities except to the extent reimbursed or guaranteed by the Company) to facilitate the acquisition by the Company. If (i) the Company rejects the acquisition opportunity in the Purchase Response Notice, (ii) the Company indicates in the Purchase Response Notice an interest in making the proposed acquisition but fails to enter into a definitive agreement with respect to the proposed acquisition within 60 days after delivery of the Purchase Response Notice or (iii) the Company fails to deliver a Purchase Response Notice within the ten Business Day period specified above, then the Company shall be deemed to have rejected the opportunity to acquire the Competing Business and Buyer shall thereafter be free to acquire control of the Competing Business for its own account.

Right of First Purchase. (a) The If the Member receives a bona fide offer to purchase all or any portion of its Membership Interest in other than a Permitted Transfer, which offer the Member intends to accept, or if a Member makes a bona fide offer to sell all or any portion of its Membership Interest in other than a Permitted Transfer, which offer a third party intends to accept, then that Member (the “Selling Member”) shall notify the Company recognizes in writing (“Notice of Transfer”) of the proposed sale or transfer and that Buyer Notice of Transfer shall set forth the portion of the Membership Interest to be sold or transferred and its Affiliates are currently engaged the identity of the prospective transferee, and may in the future engage in price and other terms and conditions of the same proposed sale or similar activities or lines transfer. For a period of business as thirty (30) days after the Company’s and its Subsidiaries’ business, which activities or lines receipt from the Selling Member of business may compete with the Company’s and its Subsidiaries’ business, and that Buyer and its Affiliates will continue in such businesses following the date hereof. Accordingly, subject only to Section 6.02(b) and the provisions a Notice of any employment agreement, consulting agreement or other written agreement with the Company, Buyer, its Affiliates, and any agent, representative, officer, director, employee of Buyer or any of its Affiliates, may engage in, or possess an interest in, other business ventures of every nature and description, independently or with others, whether or not such other enterprises shall be in competition with or operating the same or similar businesses as the Company or any of its Subsidiaries, and no such Person shall have any obligation or duty to bring business opportunities to the attention of the Company or any of its Subsidiaries, other than those business opportunities that were offered to or intended to be directed towards the Company or its Subsidiaries or were made aware or available to such Person solely as a result of such Person’s position with, or during the course of the performance of such Person’s duties toTransfer, the Company shall have an option (the “Transfer Option”) to purchase the Membership Interest that is identified in the Notice of Transfer. The purchase price per percentage of ownership of the Membership Interest and the terms of sale for the Membership Interest to be purchased pursuant to the Transfer Option shall be the price and terms identified in the Notice of Transfer or, in the event of a transfer by gift, bequest or any operation of its Subsidiariesstate laws of succession or inheritance, the fair market value of the Membership Interest to be transferred as determined by an independent appraiser selected by the Company. If the Company exercises the Transfer Option within the thirty (30) day period, then it shall have a period of ninety (90) days after the exercise of the Transfer Option to arrange financing for and close the purchase transaction. (b) From If the date hereof until the earliest of Company (i) does not exercise the first date upon which Buyer and its Affiliates no longer Beneficially Own Voting Securities representing at least 15% option granted pursuant to Section 8.2(a) to purchase all of the Total Voting PowerMembership Interests subject to the Notice of Transfer, or (ii) fails or refuses to perform its purchase obligations after that exercise within the date ninety (90) day period specified in Section 8.2(a), then the Membership Interests that are the subject matter of consummation the Notice of Transfer may be sold or transferred by Buyer the Selling Member, subject to the provisions of any 100% Acquisition Proposal permitted under Section 8.4 (unless the transfer is to an existing Member) for a period of thirty (30) days after the end of the ninety (90) day period specified in Section 8.2(a), to the transferee identified in the Notice of Transfer at the purchase price and on the terms of this Agreement and (iii) any termination of this Agreement pursuant to Section 12.01 (the “First Purchase Period”), Buyer agrees that it will not and will not permit any of its Affiliates to acquire, directly or indirectly, for its own account, solely or jointly with others, control of any Competing Business without first offering to the Company the right to acquire such Competing Business specified in the manner provided in Section 6.02(c) belowNotice of Transfer. (c) IfThe closing of any purchase transaction pursuant to Section 8.2(a) above shall take place no later than on the ninetieth (90th) day after notice of exercise of the refusal right (as more particularly set forth in Section 8.2(a)) at the offices of the Company or at another time and place as the parties mutually agree. At the closing, at any time during the First Purchase Period, Buyer desires to acquire control of a Competing Business, it Selling Member shall deliver a written notice the Membership Interest free and clear of all liens, claims, pledges, encumbrances and restrictions against delivery to the Company (the “First Purchase Notice”) identifying the Competing Business and setting forth, to the extent then known by Buyer, the material terms upon which such acquisition is proposed to be made. Not later than ten Business Days after receipt of a First Purchase Notice, the Company shall deliver to Buyer a written response (a “Purchase Response Notice”) indicating whether the Company desires to make the proposed acquisition. If the Company expresses an interest in making the proposed acquisition, Buyer will use all commercially reasonable efforts (which shall not include the expenditure of monies or the incurrence of liabilities except to the extent reimbursed or guaranteed by the Company) to facilitate the acquisition by the Company. If (i) the Company rejects the acquisition opportunity in the Purchase Response Notice, (ii) the Company indicates in the Purchase Response Notice an interest in making the proposed acquisition but fails to enter into a definitive agreement with respect to the proposed acquisition within 60 days after delivery it of the Purchase Response Notice or (iii) the Company fails to deliver a Purchase Response Notice within the ten Business Day period specified above, then the Company shall be deemed to have rejected the opportunity to acquire the Competing Business and Buyer shall thereafter be free to acquire control of the Competing Business for its own accountpurchase price required by Section 8.2(a).

Right of First Purchase. The Company hereby grants to each ----------------------- Purchaser the right to first purchase for a number of shares of the same class of New Securities (as defined in this Section 9.1) which the Company may, from time to time, propose to sell and issue. Each Purchaser shall be entitled to purchase a number of shares of the class of New Securities sufficient to maintain his pro rata ownership in the Company after taking into account the proposed issuance by the Company, which pro rata ownership is equal to the ratio that the sum of the number of shares of Preferred, the number of outstanding shares of Conversion Stock) then held by such Purchaser bears to the sum of the total number of shares of Common Stock then outstanding ant the number of shares of Conversion Stock or Common Stock issuable upon conversion of the then outstanding Preferred. (a) The Company recognizes that Buyer and its Affiliates are currently engaged and may in the future engage in the same or similar activities or lines Except as set forth below, "New Securities" shall mean any shares of business as the Company’s and its Subsidiaries’ business, which activities or lines of business may compete with the Company’s and its Subsidiaries’ business, and that Buyer and its Affiliates will continue in such businesses following the date hereof. Accordingly, subject only to Section 6.02(b) and the provisions of any employment agreement, consulting agreement or other written agreement with the Company, Buyer, its Affiliates, and any agent, representative, officer, director, employee of Buyer or any of its Affiliates, may engage in, or possess an interest in, other business ventures of every nature and description, independently or with others, whether or not such other enterprises shall be in competition with or operating the same or similar businesses as the Company or any of its Subsidiaries, and no such Person shall have any obligation or duty to bring business opportunities to the attention capital stock of the Company including Common Stock and Preferred Stock, whether now authorized or not, and rights, options or warrants to purchase said shares of Common Stock or Preferred Stock, and securities of any type whatsoever that are, or may become, convertible into said shares of its SubsidiariesCommon Stock or Preferred Stock. Notwithstanding the foregoing, other than those business opportunities that were "New Securities" does not include (i) the shares of Preferred issued pursuant to this Agreement or the Conversion Stock, (ii) securities offered to the public generally pursuant to a registration statement or intended pursuant to be directed towards Regulation A under the Securities Act, (iii) securities issued in the acquisition of another corporation by the Company by merger, purchase of substantially all of the assets or other reorganization whereby the Company or its Subsidiaries or were made aware or available to such Person solely as a result of such Person’s position with, or during the course shareholders own not less than fifty-one percent (51%) of the performance voting power of the surviving or successor corporation, (iv) shares of the Company's Common Stock or related options exercisable for such Person’s duties Common Stock issued to employees, officers and directors of, and consultants, customers, and vendors to, the Company, pursuant to any arrangement approved by the Board of Directors of the Company, (v) stock issued pursuant to any rights or agreements, including without limitation convertible securities, options and warrants, provided that the rights of first purchase established by this Section 9.1 apply with respect to the initial sale or grant by the Company of such rights or agreements, or (vi) stock issued in connection with any of its Subsidiariesstock split, stock dividend or recapitalization by the Company. (b) From In the date hereof until event the earliest Company proposes to undertake an issuance of (i) New Securities, it shall give each Purchaser written notice of its intention, describing the first date type of New Securities, and the price and terms upon which Buyer and its Affiliates no longer Beneficially Own Voting Securities representing at least 15% the Company proposes to issue the same. The Company shall include with such notice a brief summary of the Total Voting Power, business plan of the Company. Each Purchaser shall have ten (ii10) days from the date of consummation by Buyer receipt of any 100% Acquisition Proposal permitted under such notice to agree to purchase up to the Purchaser's share (calculated in accordance with Section 9.1(a)) of such New Securities for the price - and upon the terms of this Agreement and (iii) any termination of this Agreement pursuant to Section 12.01 (specified in the “First Purchase Period”), Buyer agrees that it will not and will not permit any of its Affiliates to acquire, directly or indirectly, for its own account, solely or jointly with others, control of any Competing Business without first offering notice by giving written notice to the Company and stating therein the right quantity of New Securities to acquire such Competing Business be purchased. The Company shall notify each Purchaser of any material revision to the price and terms of the issuance of New Securities and Purchasers shall be entitled to 10 additional days in order to respond to the manner provided in Section 6.02(c) belowCompany. (c) If, at any time during In the First Purchase Period, Buyer desires event a Purchaser fails to acquire control exercise such right of a Competing Business, it shall deliver a written notice to the Company (the “First Purchase Notice”) identifying the Competing Business and setting forth, to the extent then known by Buyer, the material terms upon which such acquisition is proposed to be made. Not later than ten Business Days after receipt of a First Purchase Noticefirst purchase within said 10 day period, the Company shall deliver have 120 days thereafter to Buyer a written response sell or enter into an agreement (a “Purchase Response Notice”pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within 60 days from the date of said agreement) indicating whether to sell the New Securities not elected to be purchased by Purchasers at the price and upon the terms no more favorable to the purchasers of such securities than specified in the Company's notice. In the event the Company desires has not sold the New Securities or entered into an agreement to make sell the proposed acquisition. If New Securities within said 120 day period (or sold and issued New Securities in accordance with the foregoing within 60 days for the date of said agreement), the Company expresses an interest in making the proposed acquisition, Buyer will use all commercially reasonable efforts (which shall not include thereafter issue or sell any of such New Securities, without offering securities in the expenditure manner provided above. (d) The right of monies or first purchase granted under this Agreement shall expire upon the incurrence first to occur of liabilities except the following (i): the closing of the first public offering of the Common Stock of the Company to the extent reimbursed general public which is effected pursuant to a registration statement filed with, and declared effective by, the Commission under the Securities Act; or guaranteed by the Company) to facilitate the acquisition by the Company. If (i) the Company rejects the acquisition opportunity in the Purchase Response Notice, (ii) as to a Purchaser if such Purchaser no longer holds at least 5,000 shares of Preferred and/or Conversion Stock (appropriately adjusted for Recapitalizations). (e) The right of first purchase hereunder is not assignable except by each of such Purchasers to any wholly-owned subsidiary or constituent partner who acquires at least 5,000 shares (appropriately adjusted for Recapitalizations). (f) Notwithstanding anything to the contrary contained in this Section 9, in the event the New Securities proposed to be issued by the Company indicates are to be convertible into shares of Common Stock, the right of first purchase granted pursuant to this Section 9 shall, at the Company's option, apply to the purchase of a pro rata number of shares of Common Stock into which the pro rata number of shares of New Securities the Purchaser otherwise would have been entitled would be convertible. Substitution of Common Stock in lieu of an offer of New Securities shall be indicated in the Purchase Response Notice an interest in making the proposed acquisition but fails Company's notice to enter into Purchasers pursuant to Section 9(b) hereof. Failure of a definitive agreement with respect Purchaser to the proposed acquisition within 60 days after delivery effect his right of the Purchase Response Notice or (iii) first purchase of such Common Stock shall entitle the Company fails to deliver a Purchase Response Notice within the ten Business Day period specified above, then issue any New Securities on any such terms as the Company shall approve, provided that such conversion right shall be deemed limited to have rejected a maximum number of shares as presumed in the opportunity Company's notice to acquire the Competing Business and Buyer shall thereafter be free to acquire control of the Competing Business for its own accountPurchasers.

Right of First Purchase. The Company hereby grants to Purchaser ----------------------- the right to first purchase for a number of shares of the same class of New Securities (as defined in this Section 7.1) which the Company may, from time to time, propose to sell and issue. Purchaser shall be entitled to purchase a number of shares of the class of New Securities sufficient to maintain his pro rata ownership in the Company after taking into account the proposed issuance by the Company, which pro rata ownership is equal to the ratio that the sum of the number of shares of Preferred (or the number of outstanding shares of Conversion Stock) then held by Purchaser bears to the sum of the total number of shares of Common Stock then outstanding and the number of shares of Conversion Stock or Common Stock issuable upon conversion of the then outstanding Preferred. (a) The Company recognizes that Buyer and its Affiliates are currently engaged and may in the future engage in the same or similar activities or lines Except as set forth below, "New Securities" shall mean any shares of business as the Company’s and its Subsidiaries’ business, which activities or lines of business may compete with the Company’s and its Subsidiaries’ business, and that Buyer and its Affiliates will continue in such businesses following the date hereof. Accordingly, subject only to Section 6.02(b) and the provisions of any employment agreement, consulting agreement or other written agreement with the Company, Buyer, its Affiliates, and any agent, representative, officer, director, employee of Buyer or any of its Affiliates, may engage in, or possess an interest in, other business ventures of every nature and description, independently or with others, whether or not such other enterprises shall be in competition with or operating the same or similar businesses as the Company or any of its Subsidiaries, and no such Person shall have any obligation or duty to bring business opportunities to the attention capital stock of the Company including common stock and preferred stock, whether now authorized or not, and rights, options or warrants to purchase said shares of Common Stock or preferred stock, and securities of any type whatsoever that are, or may become, convertible into said shares of its SubsidiariesCommon Stock or preferred stock. Notwithstanding the foregoing, other than those business opportunities that were "New Securities" does not include (i) the shares of Preferred issued pursuant to this Agreement or the Conversion Stock, (ii) securities offered to the public generally pursuant to a registration statement or intended pursuant to be directed towards Regulation A under the Securities Act, (iii) securities issued in the acquisition of another corporation by the Company by merger, purchase of substantially all of the assets or other reorganization whereby the Company or its Subsidiaries or were made aware or available to such Person solely as a result of such Person’s position with, or during the course shareholders own not less than fifty-one percent (51%) of the performance voting power of the surviving or successor corporation, (iv) shares of the Company's Common Stock or related options exercisable for such Person’s duties Common Stock issued to employees, officers and directors of, and consultants, customers, and vendors to, the Company, pursuant to any arrangement approved by the Board of Directors of the Company, (v) stock issued pursuant to any rights or agreements, including without limitation convertible securities, options and warrants, provided that the rights of first purchase established by this Section 7.1 apply with respect to the initial sale or grant by the Company of such rights or agreements, or (vi) stock issued in connection with any of its Subsidiariesstock split, stock dividend or recapitalization by the Company. (b) From In the date hereof until event the earliest Company proposes to undertake an issuance of (i) New Securities, its shall give Purchaser written notice of its intention, describing the first date type of New Securities, and the price and terms upon which Buyer and its Affiliates no longer Beneficially Own Voting Securities representing at least 15% the Company proposes to issue the same. The Company shall include with such notice a brief summary of the Total Voting Power, business plan of the Company. Purchaser shall have ten (ii10) days from the date of consummation by Buyer receipt of any 100% Acquisition Proposal permitted under such notice to agree to purchase up to the Purchaser's share (calculated in accordance with Section 7.1(a)) of such New Securities for the price and upon the terms of this Agreement and (iii) any termination of this Agreement pursuant to Section 12.01 (specified in the “First Purchase Period”), Buyer agrees that it will not and will not permit any of its Affiliates to acquire, directly or indirectly, for its own account, solely or jointly with others, control of any Competing Business without first offering notice by giving written notice to the Company and stating therein the right quantity of New Securities to acquire such Competing Business be purchased. The Company shall notify Purchaser of any material revision to the price and terms of the issuance of New Securities and Purchaser shall be entitled to 10 additional days in order to respond to the manner provided in Section 6.02(c) belowCompany. (c) If, at any time during In the First Purchase Period, Buyer desires event Purchaser fails to acquire control exercise such right of a Competing Business, it shall deliver a written notice to the Company (the “First Purchase Notice”) identifying the Competing Business and setting forth, to the extent then known by Buyer, the material terms upon which such acquisition is proposed to be made. Not later than ten Business Days after receipt of a First Purchase Noticefirst purchase within said 10 day period, the Company shall deliver have 120 days thereafter to Buyer a written response sell or enter into an agreement (a “Purchase Response Notice”pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within 60 days from the date of said agreement) indicating whether to sell the New Securities not elected to be purchased by Purchaser at the price and upon the terms no more favorable to the purchasers of such securities than specified in the Company's notice. In the event the Company desires has not sold the New Securities or entered into an agreement to make Sell the proposed acquisition. If New Securities within said 120 day period (or sold and issued New Securities in accordance with the foregoing within 60 days from the date of said agreement), the Company expresses an interest in making the proposed acquisition, Buyer will use all commercially reasonable efforts (which shall not include thereafter issue or sell any of such New Securities, without offering securities in the expenditure manner provided above. (d) The right of monies or first purchase granted under this Agreement shall expire upon the incurrence first to occur of liabilities except to the extent reimbursed or guaranteed by the Company) to facilitate the acquisition by the Company. If following: (i) the closing of the first public offering of the Common Stock of the Company rejects to the acquisition opportunity in general public which is effected pursuant to a registration statement filed with, and declared effective by, the Purchase Response Notice, Commission under the Securities Act; or (ii) as to Purchaser if Purchaser no longer holds at least 5,000 shares of Preferred and/or Conversion Stock (appropriately adjusted for Recapitalizations). (e) The right of first purchase hereunder is not assignable except by Purchaser to any wholly-owned subsidiary or constituent partner who acquires at least 5,000 shares (appropriately adjusted for Recapitalizations). (f) Notwithstanding anything to the contrary contained in this Section 7, in the event the New Securities proposed to be issued by the Company indicates are to be convertible into shares of Common Stock, the right of first purchase granted pursuant to this Section 7 shall, at the Company's option, apply to the purchase of a pro rata number of shares of Common Stock into which the pro rata number of shares of New Securities Purchaser otherwise would have been entitled would be convertible. Substitution of Common Stock in lieu of an offer of New Securities shall be indicated in the Purchase Response Notice an interest in making the proposed acquisition but fails Company's notice to enter into Purchasers pursuant to Section 7(b) hereof. Failure of a definitive agreement with respect Purchaser to the proposed acquisition within 60 days after delivery effect his right of the Purchase Response Notice or (iii) first purchase of such Common Stock shall entitle the Company fails to deliver a Purchase Response Notice within the ten Business Day period specified above, then issue any New Securities on any such terms as the Company shall approve, provided that such conversion right shall be deemed limited to have rejected a maximum number of shares as presumed in the opportunity Company's notice to acquire the Competing Business and Buyer shall thereafter be free to acquire control of the Competing Business for its own accountPurchaser.