RIGHT OF FIRST OFFER OF THE PURCHASERS, IF AT ANY POINT THE COMPANY OR ANY
OF ITS SUBSIDIARIES PROPOSES, DIRECTLY OR INDIRECTLY, AN EQUITY OR DEBT
FINANCING FOR THE PURPOSE OF EITHER (X) FUNDING ALL OR A PORTION OF THE PURCHASE
PRICE OF ITS ACQUISITION OF FOCUSMICRO, INC. OR (Y) REFINANCING OR RESTRUCTURING
ITS OUTSTANDING DEBT OBLIGATIONS TO WILLIAM BLAIR MEZZANINE CAPITAL FUND III,
L.P., THE COMPANY SHALL DELIVER TO THE PURCHASERS WRITTEN NOTICE IN ACCORDANCE
WITH SECTION 9.6 (THE "FINANCING NOTICE") SETTING FORTH THE TOTAL AMOUNT (WHICH
CAN BE A RANGE OF AMOUNTS) THAT THE COMPANY PROPOSES TO RAISE FOR PURPOSES OF
COMPLETING ONE OR
35
BOTH OF THE TRANSACTIONS SET FORTH ABOVE AND ANY OTHER PROPOSED TERMS AND
CONDITIONS OF THE PROPOSED FINANCING.
(B)
THE PURCHASERS SHALL HAVE THE EXCLUSIVE
RIGHT (UNLESS WAIVED IN WRITING BY THE PURCHASERS), FOR A PERIOD OF 30 DAYS
AFTER RECEIPT OF THE FINANCING NOTICE, TO DELIVER A PROPOSED TERM SHEET TO THE
COMPANY AND TO NEGOTIATE THE PROPOSED TERMS AND CONDITIONS OF THE PROPOSED
FINANCING FOR THE TRANSACTIONS SET FORTH IN SECTION 7.2(A).
(C)
IF THE COMPANY AND THE PURCHASERS HAVE NOT
EXECUTED A LETTER OF INTENT WITH RESPECT TO THE FINANCING PROPOSED BY THIS
SECTION 7.2 WITHIN SUCH 30-DAY PERIOD, THEN THE COMPANY SHALL HAVE THE RIGHT,
FOR A PERIOD OF AN ADDITIONAL 30 DAYS AFTER THE EXPIRATION OF SUCH 30-DAY
PERIOD, TO SOLICIT THIRD PARTY OFFERS FROM, AND NEGOTIATE WITH, ANY PERSON OTHER
THAN THE PURCHASERS TO ENTER INTO THE PROPOSED FINANCING ON TERMS NO MORE
FAVORABLE THAN THOSE SET FORTH IN THE FINANCING NOTICE DELIVERED BY THE COMPANY
TO THE PURCHASERS WITH RESPECT TO SUCH PROPOSED FINANCING.
IF, WITHIN SUCH
ADDITIONAL 30-DAY PERIOD, THE COMPANY OBTAINS A BONA FIDE OFFER FROM A THIRD
PARTY TO ENTER INTO THE FINANCING PROPOSED BY THIS SECTION 7.2 WITH THE COMPANY,
THEN THE COMPANY SHALL DELIVER WRITTEN NOTICE THEREOF TO THE PURCHASERS.
IN THE
EVENT THE COMPANY DOES NOT OBTAIN A THIRD PARTY OFFER WITHIN SUCH 30-DAY PERIOD,
THE COMPANY SHALL NOT THEREAFTER ENTER INTO ANY SUCH FINANCING WITHOUT FIRST
DELIVERING A NEW FINANCING NOTICE TO THE PURCHASERS AND COMPLYING WITH THE OTHER
PROVISIONS OF THIS SECTION 7.2.
Section 7.3
Co-Sale Provisions.
(A)
ANY OF THE FOLLOWING TRANSFERS FOR VALUE
(FOR PURPOSES OF THIS SECTION 7.3 REFERRED TO AS A "SALE") OF SHARES OF COMMON
STOCK OR PREFERRED STOCK SHALL BE SUBJECT TO THIS SECTION 7.3: (I) A SALE BY
EACH OF THE STOCKHOLDERS TOGETHER IN ONE TRANSACTION OR A SERIES OF RELATED
TRANSACTIONS; (II) A SALE BY ANY STOCKHOLDER (OTHER THAN SAM YOUNGBLOOD) OF ANY
OF THE SHARES OF COMMON STOCK HELD BY SUCH STOCKHOLDER THAT ARE SUBJECT TO THE
LOCK-UP AGREEMENTS REFERRED IN SECTION 2.34 AND SECTION 4.8 HEREOF; PROVIDED,
HOWEVER, THAT THE PURCHASERS SHALL NOT HAVE ANY RIGHTS PURSUANT TO THIS
SECTION 7.3(A)(II) WITH RESPECT TO ANY SUCH SHARES OF COMMON STOCK UNTIL SUCH
STOCKHOLDER (OR ANY PERMITTED TRANSFEREE UNDER CLAUSES (A), (B), (C) OR
(D) BELOW) SELLS IN