Preemptive Rights. In the event that the Company proposes to issue or sell any New Securities (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securities.
Appears in 1 contract
Samples: Stockholders’ Agreement (General Nutrition International Inc)
Preemptive Rights. In Each Member shall have a right (the event “Preemptive Right”) to purchase its Percentage Interest of any New Securities that the Company proposes to issue or sell any New Securities (as defined below) to Apollo LP or any of its Affiliates Subsidiaries may, from time to time, propose to sell or issue, on the terms and conditions it so proposes and so long as the sale or issuance to such Member would not violate any applicable law. If the Company or such Subsidiary proposes to undertake an issuance of New Securities, the Company shall give each such Member written notice (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the an “New Securities Issuance Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe intention, describing (a) the proposed issuance of New Securities (including the amount and price type of such New Securities), identify (b) the proposed purchaser(s), identity of the prospective subscriber(s) and contain an offer (c) the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration general terms and conditions upon which the Company or such Subsidiary proposes to be paid by the proposed purchaser(s), all or part of issue such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of Each such notice, each Preemptive Rights Offeree Member shall have ten (10) days during which it may elect Business Days after the receipt of such notice to agree to purchase a pro rata portion up to the product of the New Securities determined (i) such Member’s respective Percentage Interest, multiplied by dividing (ii) the number of shares of Common Stock held New Securities proposed to be issued, for the price and upon the terms and conditions specified in such Issuance Notice by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If any such Member fails to so respond in writing within such ten (10)-Business Day period, then such Member shall forfeit the right hereunder to purchase its share of such election (the “Notice New Securities. For a period of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after following the expiration of such the ten (10) day period10)-Business-Day period as described above, it shall be required the Company or such Subsidiary may issue or sell any such New Securities not subscribed for pursuant to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 33.7, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans subscriber(s) approved by the Board and at a price and upon terms and conditions not more favorable to the subscriber(s) thereof than specified in the Issuance Notice. If the Company or such Subsidiary has not issued or sold such New Securities within such period, neither the Company nor such Subsidiary shall thereafter issue or sell such New Securities, without first again offering such securities to such Members in the manner provided in this Section 3.7. Nothing in this Section 3.7 shall be construed as permitting an issuance of Directors; (vi) issued New Securities without obtaining any required approval under Section 9.1.11. The exercise or election not to exercise any right by any Member hereunder shall not adversely affect its right to participate in any other sale or issuance of New Securities pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesthis Section 3.7.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Calumet Specialty Products Partners, L.P.)
Preemptive Rights. In If, subsequent to the event that date hereof and during the Company proposes "Covered Period" (as hereinafter defined), the Corporation desires to issue or and sell any New Securities (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities Corporation (other than "Excluded Stock," as hereinafter defined), the Corporation shall afford the Purchaser "preemptive rights" (exercisable within 10 days following reasonably detailed written notice from the Corporation of the proposed sale of stock) in order to permit the Purchaser to maintain its proportionate percentage ownership in the Corporation (it being agreed that are convertible into capital stock; provided, however, that New Securities the Purchaser's "proportionate" ownership shall not include be computed by comparing the Corporation's aggregate number of outstanding shares of capital common stock to the aggregate number of shares of common stock then held by Purchaser and acquired pursuant to this Agreement on the date hereof and the "Right of First Refusal Agreement" being executed by Purchaser on or convertible securities: about the date hereof). As used herein, the term (x) "Covered Period" shall mean the period commencing on the date hereof and ending on the earliest to occur of (i) issued upon the exercise of any convertible securities; date four years after the date hereof, and (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued the date Purchaser no longer owns at least 80% of the Shares acquired pursuant to this Agreement on the date hereof; and (y) "Excluded Stock" shall mean (i) securities issued upon exercise of options or other stock-based incentive awards granted warrants or conversion of convertible securities outstanding as of the date hereof as disclosed in SCHEDULE 2(C) to consultantsthis Agreement, advisors, employees, officers or directors (ii) shares of Common Stock issuable pursuant to stock options or "Section 423" stock purchase rights (with per share exercise or purchase prices no less than 85% of the fair market value of the Common Stock on the date of grant) that may be granted in the future pursuant to the Company's 1996 and 1993 stock option plans (as such plans are currently in effect), (iii) securities issued to Purchaser or Penske Motorsports, Inc. ("Penske") or any of their respective affiliates, (iv) shares of Common Stock issued in "private placement" transactions that constitute bona fide financings or acquisitions, if and only if , with respect to this item (iv), (A) at least 50%-in-interest of the acquirors of such stock (the "New Shareholders") enter into agreements (in form reasonably acceptable to Purchaser) substantially the same as the Right of First Refusal Agreement (with the term of such agreement not to exceed the then remaining term of the Right of First Refusal Agreement), and (B) the identity of all of such New Shareholders is approved by the Board Purchaser, which approval shall not be unreasonably withheld or delayed it being agreed that approval shall not be required with respect to (x) institutional investors, or (y) any other New Shareholder that would not be required to file or amend a Schedule 13D statement with respect to the Corporation by reason of Directorsits acquisition or ownership of Common Stock (a "Non-13D Filer"); PROVIDED, HOWEVER, that upon consummation of such a financing or acquisition where the Purchaser does not approve the Non-13D Filer (viwhether or not required), the Corporation shall be obligated to file a "shelf" resale registration statement with the Commission within 15 business days of the consummation of such financing or acquisition with respect to the potential public offering and sale of up to all of the shares of Common Stock owned by Purchaser unless a "shelf" resale registration statement is then in effect or on file with the Commission with respect to such shares of Common Stock owned by Purchaser, and (v) securities issued pursuant to a mergerstock dividends, consolidationstock splits, strategic alliance, acquisition or and similar business combination; (vii) issued pursuant "no sale" events that apply generally to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance all shares of debt securitiesoutstanding Common Stock.
Appears in 1 contract
Samples: Exhibit 1 Stock Purchase Agreement (Penske Motorsports Inc)
Preemptive Rights. In the event that absence of and until a Qualified IPO, the Investor shall have the right of first refusal to purchase all or part of its pro rata share (equal to its percentage ownership of the Company proposes to issue or sell any on a fully diluted basis) of New Securities (as defined below) that the Company may, from time to Apollo LP time, propose to sell and issue, subject to the terms and conditions set forth below. "New Securities" shall mean any capital stock of the Company whether now authorized or not, and rights, options, or warrants to purchase capital stock, and securities of any type whatsoever that are, or may become, convertible into capital stock, provided, however, that the term "New Securities" does not include (i) the Senior Preferred Stock issuable under this Agreement or the shares of its Affiliates Common Stock issuable upon conversion of the Senior Preferred Stock; (other than GNC LLC)ii) securities issued pursuant to an acquisition; (iii) options granted or securities issued pursuant to an employee or director stock option program; or (iv) securities issued as a result of any stock split, stock dividend, or reclassification of Common Stock, distributable on a pro rata basis to all holders of Common Stock. In the event the Company intends to issue New Securities, it shall, no later than ten (10) days prior shall give written notice to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”"Notice of Issuance") which shall set forth the purchase price and any other conditions of such proposed issuance of New Securitiesthe issuance. The New Securities Investor shall have 30 days from the date of Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) Issuance to sell agree to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), purchase all or part of such Preemptive Rights Offeree’s its pro rata portion of the New Securities. Following receipt share of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined for the price and upon the general terms and conditions specified in the Notice of Issuance by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering giving written notice to the Company stating the quantity of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects New Securities to purchase in an amount up to, but not exceeding, its pro rata portionbe so purchased. A Preemptive Rights Offeree who fails to give such Notice of Election The Company shall have no further pre-emptive rights to which the New Securities Notice is related. If right during the Company does not effectuate such sale described in the New Securities Notice within ninety (90) period expiring 150 days after the expiration giving of the Notice of Issuance to sell any or all of such ten (10) New Securities not purchased by the Investor at a price and upon general terms no more favorable to the purchasers than specified in the Notice of Issuance. In the event that the Company has not sold such New Securities within such 150 day period, it the Company shall be required not thereafter issue or sell any New Securities without first offering such New Securities to again comply with the Investor in the manner provided in this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securities11.9.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Dpec Inc)
Preemptive Rights. In If, subsequent to the event that date hereof and during the Company proposes "Covered Period" (as hereinafter defined), the Corporation desires to issue or and sell any New Securities (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company Corporation (other than "Excluded Stock," as hereinafter defined), the Corporation shall afford the Purchaser "preemptive rights" (exercisable within 10 days following reasonably detailed written notice from the Corporation of the proposed sale of stock) in order to permit the Purchaser to maintain its proportionate percentage ownership in the Corporation (it being agreed that the Purchaser's "proportionate" ownership shall be computed by comparing the Corporation's aggregate number of outstanding shares of common stock to the aggregate number of shares of common stock then held by Purchaser and acquired pursuant to this Agreement on the date hereof and the "Right of First Refusal Agreement" being executed by Purchaser on or about the date hereof). As used herein, the term (x) "Covered Period" shall mean the period commencing on the date hereof and ending on the earliest to occur of (i) the date four years after the date hereof, and (ii) the date Purchaser no longer owns at least 80% of the Shares acquired pursuant to this Agreement on the date hereof; and (y) "Excluded Stock" shall mean (i) securities issued upon exercise of options or warrants or conversion of convertible securities outstanding as of the date hereof as disclosed in Schedule 2(c) to this Agreement, (ii) shares of Common Stock issuable pursuant to stock options or "Section 423" stock purchase rights (with per share exercise or purchase prices no less than 85% of the fair market value of the Common Stock on the date of grant) that may be granted in the future pursuant to the Company's 1996 and 1993 stock option plans (as such plans are currently in effect), (iii) securities issued to Purchaser or Penske Motorsports, Inc. ("Penske") or any of their respective affiliates, (iv) shares of Common Stock issued in "private placement" transactions that constitute bona fide financings or acquisitions, if and only if , with respect to this item (iv), (A) at least 50%-in-interest of the acquirors of such stock (the "New Shareholders") enter into agreements (in form reasonably acceptable to Purchaser) substantially the same as the Right of First Refusal Agreement (with the term of such agreement not to exceed the then remaining term of the Right of First Refusal Agreement), and (B) the identity of all securities of such New Shareholders is approved by the Purchaser, which approval shall not be unreasonably withheld or delayed it being agreed that are convertible into capital stockapproval shall not be required with respect to (x) institutional investors, or (y) any other New Shareholder that would not be required to file or amend a Schedule 13D statement with respect to the Corporation by reason of its acquisition or ownership of Common Stock (a "Non-13D Filer"); provided, however, that New Securities upon consummation of such a financing or acquisition where the Purchaser does not approve the Non-13D Filer (whether or not required), the Corporation shall not include be obligated to file a "shelf" resale registration statement with the Commission within 15 business days of the consummation of such financing or acquisition with respect to the potential public offering and sale of up to all of the shares of capital stock Common Stock owned by Purchaser unless a "shelf" resale registration statement is then in effect or convertible securities: (i) issued upon on file with the exercise Commission with respect to such shares of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kindCommon Stock owned by Purchaser, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or securities issued pursuant to the exercise stock dividends, stock splits, and similar "no sale" events that apply generally to all shares of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesoutstanding Common Stock.
Appears in 1 contract
Preemptive Rights. In If the event that Investor’s rights pursuant to Section 5(a) are terminated pursuant to Section 5(c)(iii), the Company proposes Investor shall immediately have the preemptive right to issue or sell any purchase its pro rata share of New Securities (as defined below) which the Company may, from time to Apollo LP or any of its Affiliates time, sell and/or issue at the price at which such New Securities are to be issued (other than GNC LLCincluding in an equity financing in which the Threshold Amount is reached), it shall, no later than ten (10) days prior such pro rata share to be determined in the consummation of such transaction, give notice in writing (same manner as the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer Investor’s Ownership Interest (the “Preemptive Rights OfferShare”) to sell to each Preemptive Rights Offeree, at ). In the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of event the Company outstanding immediately prior proposes to the proposed undertake an issuance of New Securities, calculated on it shall give the Investor written notice of its intention, describing the type of New Securities, the price and the general terms and conditions upon which the Company proposes to issue the New Securities (the “Issuance Notice”). The Investor shall have fifteen (15) business days from the date of receipt of the Issuance Notice (the “Exercise Period”) to agree to purchase all or a fully diluted, as converted basis. Such election shall be made portion of the Investor’s Preemptive Share of such New Securities for the price and upon the general terms specified in the Issuance Notice by delivering giving written notice to the Company Company, which notice shall state the quantity of such election New Securities to be purchased by the Investor (the “Notice of ElectionPreemptive Notice”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion). A Preemptive Rights Offeree who fails to give such Notice of Election The Company shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) 90 days after the expiration of such ten the Exercise Period (10the “Offering Period”) day periodto sell the New Securities which are not purchased pursuant to the Preemptive Notice (the “Remaining New Securities”) at a price and upon general terms no more favorable to the purchasers thereof than specified in the Issuance Notice. In the event the Company has not sold the Remaining New Securities within the Offering Period, it the Company shall be required to again comply not thereafter issue or sell any New Securities without first complying with this Section 3 prior 5(d). The Company agrees that the Investor may transfer the rights granted to effectuating the Investor pursuant to this Section 5(d) to any such saleentity or organization within the Control Group. For purposes of this Section 35(d), “New Securities” shall mean any shares of capital stock equity securities of the Company whether or not now authorized and all any securities that are convertible into capital stock; providedconvertible, however, that New Securities shall not include shares exchangeable or exercisable for any equity security of capital stock or convertible securities: the Company other than (i) issued upon the exercise of any convertible securities; Excluded Securities, or (ii) securities issuable upon the exercise, conversion or exchange of derivative securities which were originally issued as New Securities in connection accordance with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesthis Section 5(d).
Appears in 1 contract
Preemptive Rights. In the event that the Company proposes to issue or sell any New Securities (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “"New Securities Notice”") to each Institutional Co-Investor (each, a “"Preemptive Rights Offeree”") of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “"Preemptive Rights Offer”") to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s 's pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “"Notice of Election”") specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “"New Securities” " shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securities.
Appears in 1 contract
Samples: Stockholders' Agreement (GNC Corp)
Preemptive Rights. In the event that the Company proposes to issue or sell If ResNet issues any New Securities (as defined below) to Apollo LP or any additional shares of its Affiliates capital ----------------- stock (other than GNC LLCincluding by sale of treasury stock), it shalleach Stockholder shall have the preemptive and preferential right, no later than ten (10) days prior in proportion to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion its percentage ownership of the New Securities. Following receipt capital stock of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding ResNet immediately prior to the proposed issuance of New Securitiessuch issuance, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of purchase and subscribe for additional shares of Common Stock that it elects to purchase in an amount up tothe capital stock of ResNet, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which upon the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating same terms and conditions as any such sale. For purposes of this Section 3, “New Securities” shall mean any shares new issuance of capital stock of ResNet, such that each Stockholder will have immediately after such stock issuance, the Company and all securities that are convertible into same percentage ownership of the capital stockstock of ResNet as such Stockholder had immediately prior to such stock issuance; provided, however, that New Securities LodgeNet shall have no preemptive rights with respect to the Initial Stock or any Conversion Stock, Reconciliation Stock, or Option Stock to be issued to TCI-Satellite and provided further that for purposes of determining percentage ownership of each of the Stockholders in the capital stock of ResNet, all of the Initial Stock and the Conversion Stock shall be deemed to be owned by TCI-Satellite and all of the Reconciliation Stock and Option Stock shall be deemed to be owned by TCI- Satellite if it has been issued and, if or to the extent that it has not include been issued, all of the Reconciliation Stock and Option Stock shall be deemed to be owned by TCI-Satellite until such time as the Option Agreement and the Option Warrant shall have terminated without issuance of the Option Stock. If TCI- Satellite is prevented from exercising its preemptive rights to acquire additional shares of capital stock of ResNet due to the Regulatory Restrictions, upon payment of the purchase price for such shares ResNet shall issue such shares into an escrow or voting trust that, in the opinion of regulatory counsel reasonably acceptable to ResNet, would not violate the Regulatory Restrictions, or upon TCI-Satellite loaning the amount of the purchase price for such shares to ResNet on a non-recourse basis ResNet shall issue a warrant to acquire such shares, in form and substance reasonably satisfactory to ResNet and TCI- Satellite, to TCI-Satellite, at the option of TCI-Satellite. If any issuance of capital stock of ResNet is on varying terms, the preemptive rights of the Stockholders hereunder shall be at the most favorable price and on the most favorable terms applicable to any purchaser of any such additional shares of capital stock of ResNet. If the consideration paid by a purchaser is not cash or cash equivalents, then the price paid by such purchaser will be deemed to be the fair market value of such consideration. The Stockholders' preemptive right to acquire additional shares of capital stock of ResNet shall extend, without limitation, to shares issued pursuant to any options, warrants, debentures, or debt convertible securities: into common stock of ResNet (i) issued upon which in the case of debt or debentures coupled with warrants will be considered as a unit for purposes of exercise of any convertible securities; (ii) preemptive rights), to shares issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kindfor property or services, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or to shares issued pursuant to the exercise of options any stock option, bonus, or other stock-based incentive awards granted to consultantsplan for the benefit of any of the directors, advisorsofficers, employees, officers or directors pursuant to plans approved by the Board employees of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesResNet.
Appears in 1 contract
Samples: Stockholders' Agreement (Tci Satellite Entertainment Inc)
Preemptive Rights. In the event that the Company proposes to issue or sell any New Securities (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC)If, it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid any firm commitment underwritten offering by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number Corporation of shares of the Common Stock to the public pursuant to an effective registration statement under the Securities Act of 1933, as amended, or any subsequent Federal statute thereto, the Corporation shall issue any equity securities consisting of the Common Stock or other equity securities convertible into the Common Stock, each of Frxxxxxx xnd Pexxxxxx xhall be entitled to purchase the portion of such Common Stock or other equity securities to be issued that is necessary in order that the aggregate shares of the Common Stock held by such Preemptive Rights Offeree by Frxxxxxx xr Petrenko constitutes the aggregate number same percentage of shares all of the Common Stock (assuming the conversion, exercise or exchange of all convertible equity securities) after the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which or convertible equity securities as before the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stockissuance thereof; provided, however, that New Securities such preemptive right shall not include shares apply to (a) issuances of capital stock the Common Stock or equity securities convertible securities: (i) issued into the Common Stock upon the conversion, exercise or exchange of any equity securities issued in compliance with the provisions of this Section 7, (b) issuances of the Common Stock or equity securities convertible securities; (ii) issued into the Common Stock in connection with payment-in-kind interest; an exercise of the preemptive rights granted hereunder, (iiic) issuances of Common Stock or equity securities to a Person pursuant to the terms of any stock options, warrants or other equity securities convertible into the Common Stock that are issued in connection with dividends payable in kindand outstanding on the date hereof or any stock option, if and when declared; warrant or convertible security plan or policy approved by Frxxxxxx xnd Pexxxxxx xnd the Directors designated by Frxxxxxx xnd Petrenko, or (ivd) issued issuances of Common Stock or equity securities, approved by Frxxxxxx xnd Pexxxxxx xnd the Directors designated by Frxxxxxx xnd Petrenko, to a Person in connection with a stock split or recapitalization; (v) granted or issued pursuant business relationship as long as the primary purpose of such issuance is not equity financing. The price of securities which Frxxxxxx xnd Pexxxxxx xach becomes entitled to purchase by reason hereof shall be the same price at which such securities are offered to others. Frxxxxxx xr Petrenko may exercise of options his right under this Section 7 to purchase the Common Stock or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved equity securities convertible into the Common Stock by paying the purchase price therefor at the principal office of the Corporation within thirty (30) days after receipt of notice from the Corporation (which notice by the Board of Directors; Corporation shall be given at least thirty-five (vi35) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or days before the issuance of debt the Common Stock or other equity securities convertible into the Common Stock) stating the number or amount of the Common Stock or other equity securities convertible into the Common Stock that the Corporation intends to issue and the price and characteristics thereof. Frxxxxxx xnd/or Petrenko shall pay such purchase price in cash or by check; provided, however, that if the Corporation is indebted to Frxxxxxx xr Pexxxxxx, then Frxxxxxx xr Pexxxxxx xhall be entitled, at his sole option, to credit against the purchase price all or any portion of the Corporation’s indebtedness to him which is then due. Frxxxxxx’x xnd Petrenko’s contractual preemptive rights hereunder shall be deemed to be exercised immediately prior to the close of business on the day of payment of the purchase price in accordance with the foregoing provisions, and at such time Frxxxxxx xnd/or Petrenko shall be treated for all purposes as the record holder of the equity securities, as the case may be. As promptly as practicable (and in any event within five (5) days) after the purchase date, the Corporation shall issue and deliver at its principal office a certificate or certificates for the number of full shares of the Common Stock or the number of full shares or amount, whichever is applicable, of other equity securities convertible into the Common Stock, together with cash for any fraction of a share or portion of such other equity security at the purchase price to which Frxxxxxx xr Pexxxxxx xs entitled hereunder.
Appears in 1 contract
Preemptive Rights. In the event that the Company proposes to issue or sell any New Securities (For so long as defined below) to Apollo LP Investor or any of its Affiliates owns not less than 10% of the Common Stock of the Company, assuming conversion of the Convertible Common Stock, that it acquires pursuant to this Agreement, Investors and its Affiliates shall have the right to purchase any New Securities that the Company may hereafter from time to time propose to sell and issue (other than GNC LLC)whether or not presently authorized) for cash, it shallincluding, no later than ten (10) days prior shares from the treasury of the Company, in the ratio that the number of Shares Investor or its Affiliates holds on a fully diluted basis at the time of issue bears to the consummation total number of shares then outstanding on a fully diluted basis. The purchase price for such transaction, give notice in writing (the “New Securities Notice”) shall be the price at which such New Securities are proposed to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securitiesbe issued. The New Securities Notice Company shall describe the give Investor written notice of a proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”a "Proposed Issuance") to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) least 30 days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance date of New Securities, calculated on a fully diluted, as converted basisthe Proposed Issuance. Such election notice shall set forth the terms and conditions of the Proposed Issuance. The rights granted pursuant to this Section shall be made deemed waived by delivering Investor if it or its Affiliates do not exercise such right in whole or in part by written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which and pay for the New Securities Notice is relatedas to which Investor or its Affiliates exercised such rights within 30 days of receipt of notice of the Proposed Issuance. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “"New Securities” " shall mean any shares of capital common stock or other equity securities of the Company Company, whether now authorized or not, and all any rights, options or warrants to purchase such shares or other equity securities of any type whatsoever that are or may become convertible into capital stocksaid shares of common stock or other equity securities; provided, however, that "New Securities shall Securities" does not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) securities to be issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued an underwritten public offering pursuant to a registration statement filed under with the Securities Act; or and Exchange Commission, (viiiii) any securities to be issued in connection with borrowing a merger, an acquisition of stock or the issuance assets, consolidation or other type of debt securities.business combination so long as such transaction is an arms-length transaction, (iii) any securities issuable upon
Appears in 1 contract
Samples: Stock Purchase Agreement (Dimeling Schreiber & Park)
Preemptive Rights. In the event that The Company shall, prior to any issuance by the Company proposes of any of its securities (other than debt securities with no equity feature), offer to issue or sell any New Securities each Covered Holder by written notice the right, for a period of thirty (30) days, to purchase the Covered Holder's Pro Rata Share (as such term is defined below) of such securities for cash at a price equal to Apollo LP the price or other consideration for which such securities are to be issued; provided, however, that the preemptive rights of each Covered Holder pursuant to this Section 7.9 shall not apply to securities issued (A) upon conversion of any shares of the Preferred Stock outstanding on the Closing Date (B) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (C) pursuant to options or other rights which are issued pursuant to the 1994 or 1995 Stock Option Plans or any similar plan approved by the Board of its Affiliates Directors of the Company and the holders of Voting Securities within one year of such Board approval or (other than GNC LLC)D) in payment of dividend obligations on the Preferred Stock. The Company's written notice to each Covered Holder shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. A Covered Holder may accept the Company's offer as to the full number of securities offered to it shall, no later than ten (10) days or any lesser number by written notice thereof given by it to the Company prior to the consummation expiration of the aforesaid thirty (30) day period, in which event the Company shall promptly sell and such transactionCovered Holder shall buy, give notice in writing (upon the “New Securities Notice”) terms specified, the number of securities agreed to each Institutional Co-Investor (eachbe purchased by the Covered Holder. For purposes of this Section 7.9, a “Preemptive Rights Offeree”) Covered Holder's "Pro Rata Share" of such proposed issuance offered securities shall be determined by multiplying the full number of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid securities offered by the proposed purchaser(s)Company by a fraction, all or part the numerator of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree which shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing be the number of shares of Common Stock held by such Preemptive Rights Offeree by the Covered Holder as of the date of the Company's notice of offer and the denominator of which shall be the aggregate number of shares of Common Stock (calculated as aforesaid) held on such date by all holders of capital stock of the Company. The Company outstanding immediately shall be free at any time following expiration of the thirty-day offer period and prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of the thirty day offer period, to offer and sell to any third party or parties the number of the securities not agreed by the Covered Holders to be purchased by them, all at a price and on payment terms no less favorable to the Company than those specified in such ten notice of offer to the Covered Holders. However, if such third party sale or sales are not consummated within such ninety (1090) day period, it the Company shall be required to not sell such securities as shall not have been purchased within such period without again comply complying with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securities7.9.
Appears in 1 contract
Preemptive Rights. In the event that the Company proposes to issue any Common Stock or sell any New Securities other equity securities, the Company shall give not less than thirty (30) days' prior written notice to the Specified Investors (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to setting forth the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) terms and conditions of such proposed issuance of New Securities(the "Issuance Notice"). The New Securities Notice Specified Investors shall describe have the proposed issuance of New Securities preemptive right to purchase up to eighty percent (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”80%) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of securities so offered on the New Securities determined terms and conditions set forth in the Issuance Notice by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering giving written notice to the Company within fifteen (15) days after receipt of such election the Issuance Notice (the “Notice of Election”) specifying "Election Period"). Each electing Specified Investor shall have the number of shares of Common Stock that it elects right to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give share of the offered securities (determined by dividing such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described Specified Investor's percentage interest in the New Securities Common Stock on a fully-diluted basis by the aggregate percentage interest of all electing Specified Investors in the Common Stock on a fully-diluted basis and multiplying such quotient by eighty percent (80%) of the offered securities); provided, however, that if any Specified Investor declines to exercise its preemptive right in full, the remaining electing Specified Investors shall be entitled to purchase such Specified Investor's unpurchased portion of the offered securities on a pro rata basis. The Company may issue and sell all offered securities not purchased by the Specified Investors on the terms and conditions set forth in the Issuance Notice within ninety (90) days after the expiration of the Election Period; provided, however, that any offered securities not sold within such ten (10) 90-day period, it period or any offered securities that are proposed to be sold on terms and conditions less favorable to the Company than those set forth in the Issuance Notice shall again be required subject to again comply with the procedure set forth in this Section 3 4.10 prior to effectuating issuance. The provisions of this Section 4.10 shall not apply to any such salePermitted Issuance (as defined in Section 6 of Article Four of the Company's Restated Certificate of Incorporation, as amended) or any issuance of equity securities for non-cash consideration to non-Affiliates of the Company. A Specified Investor may assign its rights pursuant to this Section 4.10 to one or more of its Affiliates, subject only to compliance with applicable securities laws. For purposes of this Section 34.10, “New Securities” a Specified Investor shall mean any shares of capital stock each of the Company and all securities that are convertible into capital stockfollowing Investors: Bessemer Venture Partners, WNA; providedBCV Partners WNA; Boston Capital Ventures III, howeverL.P.; Brooxx Xxxer Properties, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securitiesInc.; (ii) issued in connection with payment-in-kind interestCentennial Entrepreneurs Fund V, L.P.; (iii) issued in connection with dividends payable in kindCentennial Fund IV, if and when declaredL.P.; (iv) issued in connection with a stock split or recapitalizationCentennial Fund V, L.P.; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultantsCentennial Holdings, advisorsInc.; Centennial Holdings I, employeesLLC; Fleet Equity Partners VI, officers or directors pursuant to plans approved by the Board of DirectorsL.P.; (vi) issued pursuant to a mergerFleet Venture Resources, consolidationInc.; GC&H Investments, strategic allianceInc.; Norwest Equity Partners V, acquisition or similar business combinationL.P.; (vii) issued pursuant to a registration statement filed under the Securities ActProvidence Equity Partners II, L.P.; or (viii) issued in connection with borrowing or the issuance of debt securities.Providence
Appears in 1 contract
Samples: Stockholders Agreement (Verio Inc)
Preemptive Rights. In the event that the Company proposes (a) If at any time from time to issue or sell any New Securities time (as defined belowi) to Apollo LP ACRA or any of its Affiliates Subsidiaries, or (other than GNC LLCii) any time after the formation of a New ACRA Investment Entity, such New ACRA Investment Entity or any of its Subsidiaries ((i) and (ii), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each), a “Preemptive Rights OffereeOfferor”) of such proposed issuance of New Securities. The ), proposes to offer New Securities Notice shall describe to any Person after the proposed issuance date hereof (or, in the case of a New Securities (including ACRA Investment Entity, after the amount and price of date such New SecuritiesACRA Investment Entity executes its Joinder Agreement), identify the proposed purchaser(s)Preemptive Offeror, and contain as applicable, shall, prior to such offer, deliver to all Shareholders of the applicable ACRA Investment Entity an offer (the “Preemptive Rights Offer”) for such Shareholders that are able to sell certify to the Preemptive Offeror, as the case may be, that they are “accredited investors” (as such term is defined in Rule 501 pursuant to the Securities Act) (the “Eligible Shareholders”), to purchase that number of New Securities in connection with such proposed offering of New Securities, so that each such Shareholder would, in the aggregate, after the issuance or sale of all of such New Securities in connection with the proposed offering, hold the same Pro Rata Amount of shares of the applicable Preemptive Rights OffereeOfferor as was held by such Shareholder prior to such issuance and sale (or, in regard to the issuance and sale by a Subsidiary of a Preemptive Offeror, its Pro Rata Amount of such New Securities). Such issue shall be at the same price and for the same consideration New Securities issued to each such Shareholder shall have no less favorable terms and conditions as are applicable to the New Securities received by all other purchasers of such New Securities. The Preemptive Offer shall state (A) that the applicable Preemptive Offeror proposes to issue New Securities, (B) the amount of New Securities to be paid by issued, (C) the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion terms of the New Securities. Following receipt , (D) the purchase price of such noticethe New Securities, each Preemptive Rights Offeree shall have ten (10E) days during which it may elect to purchase a pro rata the portion of the New Securities determined by dividing the number of shares of Common Stock held available for purchase by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock Shareholder and (F) any other material terms of the Company outstanding immediately prior to the proposed issuance issuance. The Preemptive Offer shall remain open and irrevocable for a period of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election fifteen (15) business days (the “Notice of ElectionPreemptive Period”) specifying from the number date of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesdelivery.
Appears in 1 contract
Preemptive Rights. In the event that (a) Subject to Sections 8.1 (b) and 8.2, the Company proposes hereby grants to issue each Stockholder (each, collectively, a “Preempting Stockholder”) a right to subscribe for, with respect to the issuance by the Company of new or sell any New Securities additional equity securities for cash (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLCa “Preemptive Issuance”), it shallthat portion of such new or additional equity securities (including convertible securities, no later than ten options or warrants) as may be necessary in order to permit such Preempting Stockholder to maintain its relative ownership of the aggregate amount of the Company’s total issued ordinary share capital (10such relative ownership, the “Proportional Interest”) days calculated on the basis that: (A) each Ordinary Share shall be treated equally; (B) each Hurdle Share shall be deemed to have been converted into such number of Ordinary Shares as the Hurdle Shares would have converted into had there been a Qualifying IPO immediately prior to the consummation proposed Preemption Issuance on the basis of the deemed market capitalization of the Company and the Proportional Interest of each Preempting Stockholder shall be determined by resolution of the Board taking into account the latest available Fair Market Value of the Ordinary Shares and the Hurdle Shares for determining the purposes of Article IX and the timing of the Proposed pre-emptive issue and the terms of the Articles of Association. Subject to Section 8.2 such transaction, give notice in writing (the “New Securities Notice”) right of first refusal shall be offered to each Institutional Co-Investor Preempting Stockholder (eachsuch offer, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) pursuant to sell a written notice from the Company in accordance with Section 16.7 hereof offering each Preempting Stockholder such securities on the same terms and conditions as offered to each the other offeree(s) (such written notice, the “Preemptive Rights Offeree, at Notice”). Each Preempting Stockholder shall have thirty (30) days from the same price and for date of the same consideration Company’s delivery of the Preemptive Rights Notice to be paid by notify the proposed purchaser(s), all or part Company in writing of its binding acceptance of such Preemptive Rights Offeree’s pro rata portion Offer with respect to all (but not part) of the New Securities. Following receipt of equity securities which are offered to such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect Preempting Stockholder pursuant to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by Offer. If one or more Preempting Stockholders accepts the aggregate number of shares of Common Stock Preemptive Rights Offer in accordance with the provisions of the Company outstanding immediately prior to the proposed issuance of New Securitiespreceding sentence, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of and any such election accepting party shall have thirty (30) days in which to consummate such binding agreement. In the “Notice of Election”) specifying event that one or more Preempting Stockholders do not accept the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who Offer within such thirty (30) day period in accordance with the provisions of the preceding sentence or fails to give consummate any such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate subscription within such sale described in the New Securities Notice within ninety thirty (90) days after the expiration of such ten (1030) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company shall have the right but not the obligation to issue the securities comprising the Preemptive Issuance on terms and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon conditions in the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant aggregate no more favorable to the exercise of options or other stock-based incentive awards granted to consultantsofferee(s) than those set forth in the Preemptive Rights Notice, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a mergerdefinitive agreement to be entered into no later than one hundred and twenty (120) days after such date provided that if the Board determines by resolution to apply the provisions of Section 8.2, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant the periods set out herein may be reduced to a registration statement filed under such shorter period as News Corporation and the Securities Act; or (viii) issued in connection with borrowing or members of the issuance of debt securitiesInvestor Group may agree.
Appears in 1 contract
Preemptive Rights. In At any time following the event that Fourth Restatement Closing Date until the Maturity Date, if the Company proposes to issue or sell additional Shares to any New Securities (as defined below) to Apollo LP or any of its Affiliates Person (other than GNC LLCany Preemptive Rights Excluded Issuance) (a “New Issuance” and any such Shares or other securities issued thereunder, the “Newly Issued Securities”), it shall, the Company shall provide written notice to each Fourth Restatement Holder and the Collateral Agent of such anticipated New Issuance no later than ten seven (107) days Business Days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed anticipated issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer date (the “Preemptive Rights OfferNotice”) to sell to each ). The Preemptive Rights Offeree, at Notice shall set forth the same price material terms and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion conditions of the New Issuance, including the proposed purchase price for the Newly Issued Securities. Following receipt , the anticipated issuance date, and the purpose of such notice, each New Issuance. Each Fourth Restatement Holder shall have the right to purchase up to its Pro Rata Portion of such Newly Issued Securities at the price and on the terms and conditions specified in the Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made Notice by delivering an irrevocable written notice to the Company of such election no later than five (5) Business Days before the “Notice of Election”) specifying anticipated issuance date, setting forth the number of shares such Newly Issued Securities for which such right is exercised. Such notice shall also include the maximum number of Common Stock that it Newly Issued Securities such Fourth Restatement Holder would be willing to purchase in the event any other Fourth Restatement Holder elects to purchase in an amount up to, but not exceeding, less than its pro rata portion. A Preemptive Rights Offeree who fails to give Pro Rata Portion of such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is relatedNewly Issued Securities. If any such Fourth Restatement Holder elects not to purchase its full Pro Rata Portion of such Newly Issued Securities, the Company does not effectuate shall allocate any remaining amount among those Fourth Restatement Holder (in accordance with the Pro Rata Portion of each such sale described Fourth Restatement Holder up to the maximum number specified by Fourth Restatement Holder pursuant to the immediately preceding sentence) who have indicated in their notice to the New Company a desire to purchase Newly Issued Securities Notice within ninety (90) days after the expiration in excess of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such saletheir respective Pro Rata Portions. For the purposes of this Section 38.22, “New SecuritiesPro Rata Portion” shall mean mean, with respect to each Fourth Restatement Holder at any shares time, a fraction, the numerator of capital stock which is the amount of the aggregate unpaid principal amount outstanding under the Notes held by such Fourth Restatement Holder at such time and the denominator of which is the aggregate unpaid principal amount outstanding under the Notes held by all Fourth Restatement Holders at such time. The exercise by any Holder of the rights in this Section 8.22 shall be subject to compliance by the Company with any applicable securities laws and all securities that are convertible into capital stock; providedstock exchange rules, however, that New and a Holder’s rights to purchase Newly Issued Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant be limited to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed what is permitted under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesapplicable securities laws.
Appears in 1 contract
Samples: Securities Purchase Agreement (MedMen Enterprises, Inc.)
Preemptive Rights. In the event that the Company proposes Wabtec determines to issue sell Common Shares, Preferred Shares or sell any New Securities (as defined below) other equity or voting securities of Wabtec to Apollo LP or any of its Affiliates (a third party for cash other than GNC LLC)in a public offering, it shallWabtec will make proper provision to offer each Shareholder the opportunity to purchase such Common Shares, no later Preferred Shares or other equity or voting securities of Wabtec on the same terms as they are offered to such third party in order to maintain the Shareholder’s percentage equity and voting ownership interest in Wabtec (calculated assuming conversion of all outstanding Preferred Shares) by notice given to the Shareholders not less than ten (10) days 10 Business Days prior to the consummation of any such transaction, give notice in writing third-party sale (the “New Securities Issuance Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice which shall describe the proposed issuance of New Securities (including set forth the amount and price description of the securities proposed to be sold and the percentage of fully diluted outstanding equity or voting securities of Wabtec such New Securities)securities would represent after the sale, identify the proposed purchaser(s)date of the sale, and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all acquiror and the estimated purchase price per security so sold or part issuance. If any Shareholder fails to accept such offer in writing within ten Business Days of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such noticeIssuance Notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basisrights will be deemed irrevocably waived. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it If any Shareholder elects to purchase in an amount up tosuch securities, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails such Shareholder will be irrevocably bound to give purchase the securities on the terms sold to such Notice of Election shall have no further pre-emptive rights third party (to which the New Securities Notice is related. If the Company does not effectuate such sale described extent set forth in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day periodIssuance Notice). The foregoing rights will not apply to Common Shares issued in a merger, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3acquisition or other business combination transaction or Common Shares issued under employee equity plans or Common Shares or other securities offered and sold in a public offering, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options Shareholder may purchase Common Shares or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans securities in any such public offering approved by the Board in an amount necessary to avoid dilution of Directors; (vi) issued pursuant its percentage equity interest in Wabtec prior to a mergersuch offering. Any Common Shares so purchased will be deemed, consolidationwithout further action, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance be “Shares” for purposes of debt securitiesthis Agreement.
Appears in 1 contract
Samples: Shareholders Agreement (Westinghouse Air Brake Technologies Corp)
Preemptive Rights. (a) Following the Closing, the Purchaser shall have the right to purchase any New Securities that the Corporation or any Corporation Subsidiary may from time to time propose to issue or sell to any Person. (b) At least thirty (30) Business Days prior to any issuance or sale referred to in Section 4.4(a), the Corporation shall notify in writing the Purchaser of such proposed issuance or sale (the “Preemptive Right Notice”). The Preemptive Right Notice shall describe the proposed issuance or sale and the material terms and conditions thereof, including: (i) the number of New Securities proposed to be issued and the percentage of the Corporation's or such Corporation Subsidiary’s outstanding Common Stock, as applicable, on a fully diluted basis, that such issuance would represent; (ii) the proposed issuance date, which shall be at least thirty (30) Business Days from the date of the Preemptive Right Notice; (iii) the proposed purchase price per share and (iv) a summary of the material terms of such New Securities. The Purchaser shall for a period of twenty (20) Business Days following the receipt of a Preemptive Right Notice (the “Exercise Period”) have the right to elect irrevocably to purchase, at the purchase price set forth in the Preemptive Right Notice, all or any portion of such New Securities, by delivering a written notice to the Corporation. (c) Subject to the Certificate of Designation, the Corporation shall be free to complete the proposed issuance or sale of New Securities described in the Preemptive Right Notice with respect to any New Securities not elected to be purchased pursuant to Section 4.4(b) above in accordance with the terms and conditions set forth in the Preemptive Right Notice (except that the amount of New Securities to be issued or sold by the Corporation may be reduced) so long as such issuance or sale is closed within sixty (60) Business Days after the expiration of the Exercise Period (subject to the extension of such sixty (60) Business Day period for a reasonable time not to exceed thirty (30) days to the extent reasonably necessary to obtain necessary approvals from Governmental Entities). In the event that the Company proposes to Corporation has not sold such New Securities within such time period, the Corporation shall not thereafter issue or sell any New Securities without first again offering such securities to the Stockholders in accordance with the procedures set forth in this Section 4.4. (as defined belowd) to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to Upon the consummation of such transaction, give notice in writing (the “issuance of any New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply accordance with this Section 3 prior to effectuating any such sale. For purposes of this Section 34.4, “New Securities” the Corporation shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant deliver to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; Purchaser certificates (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securities.if any)
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Finjan Holdings, Inc.)
Preemptive Rights. (a) In the event that that, at any time, the Company proposes to issue or sell any New Securities (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC)Subsidiaries decides to undertake an issuance of New Securities, it shallthe Company shall at such time deliver to each Shareholder Party written notice of the Company’s decision, no later than ten (10) days prior to describing the consummation amount, type and terms of such transactionNew Securities, give notice in writing the purchase price per New Security (the “New Securities NoticePrice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part purchasers of such Preemptive Rights Offeree’s pro rata portion of New Securities and the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during other terms upon which it may elect the Company has decided to purchase a pro rata portion of issue the New Securities determined including, the expected timing of such issuance and any material filings, approvals or other conditions to such issuance under applicable Laws (the “Preemptive Notice”). Each such Shareholder Party shall have fifteen (15) days from the date on which the Preemptive Notice is given to agree by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of written notice to the Company outstanding immediately prior (a “Preemptive Exercise Notice”) to purchase up to its proportional share of such New Securities for the New Securities Price and upon the general terms specified in the Preemptive Notice and stating therein the quantity of New Securities to be purchased by any such Shareholder Party, including any Excess New Securities such Shareholder Party wishes to purchase if such securities are available. In the event that in connection with such a proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering any such Shareholder Party for any reason fails or refuses to give such written notice to the Company of within such election fifteen (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (1015) day period, it shall be required to again comply with such Shareholder Party shall, for all purposes of this Section 3 prior 2.3, be deemed to effectuating have refused (in that particular instance only) to purchase any of such saleNew Securities and to have waived (in that particular instance only) all of its rights under this Section 2.3 to purchase any of such New Securities. For purposes of this Section 32.3, a Shareholder Party’s “proportional share” shall mean, at any time, the quotient obtained by dividing the number of Limited Voting Shares held by such Shareholder Party at such time by the aggregate number of Limited Voting Shares held by all Shareholder Parties. In the event that any Shareholder Party does not elect to purchase all of its respective proportional share, the New Securities which were available for purchase by such non-electing Shareholder Parties (the “Excess New Securities” ”) shall mean any shares automatically be deemed to be accepted for purchase by the Shareholder Parties that indicated in their Preemptive Exercise Notice a desire to participate in the purchase of capital stock Excess New Securities. Unless otherwise agreed by all of the Company and all securities Shareholder Parties participating in the purchase, each Shareholder Party that are convertible into capital stock; provided, however, indicated in its Preemptive Exercise Notice that it desired to purchase more than its proportional share shall purchase a number of Excess New Securities shall not include shares equal to the lesser of capital stock or convertible securities: (ix) issued upon the exercise number of any convertible securities; (ii) issued Excess New Securities indicated in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kindthe Preemptive Exercise Notice, if any, and when declared; (ivy) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant an amount equal to the exercise product of options or other stock-based incentive awards granted to consultants(A) the number of Excess New Securities and (B) a fraction, advisors, employees, officers or directors pursuant to plans approved the numerator of which is the number of Limited Voting Shares held at such time by such Shareholder Party and the Board denominator of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under which is the Securities Act; or (viii) issued aggregate number of Limited Voting Shares held at such time by all Shareholder Parties participating in connection with borrowing or the issuance such purchase of debt securitiesExcess New Securities.
Appears in 1 contract
Samples: Investor Rights Agreement (Concordia International Corp.)
Preemptive Rights. (a) In the event that case the Company proposes at any time to issue or sell any New Securities shares of equity securities of the Company (as defined belowor securities convertible or exchangeable for equity securities of the Company) to Apollo LP or any of its Affiliates issued by the Company after the date hereof (other than GNC LLCcollectively, the "Company Offered Securities"), it the Company shall, no later than ten twenty (1020) days prior to the consummation of such transactiontransaction (a "Preemptive Rights Transaction"), give notice in writing (the “New Securities "Preemptive Rights Offer Notice”") to each Institutional Co-Investor (eachWilliams, a “the Other Stockholders and their respective Permitted Traxxxxxxxx of such Preemptive Rights Offeree”) of such proposed issuance of New SecuritiesTransaction. The New Securities Preemptive Rights Offer Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities)Preemptive Rights Transaction, identify the proposed purchaser(s)purchaser or purchasers, and contain an offer (the “"Preemptive Rights Offer”") to sell to each Preemptive Rights OffereeWilliams, the Other Stockholders and their respective Permitted Traxxxxxxxx, at the same price and for the same consideration to be paid by the proposed purchaser(spurchaser (provided, that, in the event any of such consideration is non- cash consideration, at the election of Williams, the Other Stockholders or their respective Permitted Tranxxxxxxx to whom the Preemptive Rights Offer is made, Williams, the Other Stockholders and their respective Permitted Traxxxxxxxx may pay cash equal to the value of such non-cash consideration), all or any part of such Preemptive Rights Offeree’s Williams', the Other Stockholders' and their respective Permitted Txxxxxxxxes' pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree Company Offered Securities (which shall have ten (10) days during which it may elect to purchase be a pro rata portion fraction of the New Company Offered Securities determined by dividing the number of shares of Common outstanding Voting Stock held owned by Williams, the Other Stockholders or such of their Permitted Transfexxxx, xx the case may be, by the total number of outstanding shares of Voting Stock). If Williams, the Other Stockholders or their respective Permitted Tranxxxxxxx to whom a Preemptive Rights Offeree Offer is made fail to accept (each a "Non-Responding Holder") in writing the Preemptive Rights Offer by the aggregate number of shares of Common Stock fifteenth (15th) day after the Company's delivery of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give Offer Notice, such Notice of Election Non-Responding Holders shall have no further pre-emptive rights with respect to which the New Securities Notice is related. If proposed Preemptive Rights Transaction and the Company does not effectuate such sale described in may proceed with the New Securities Notice within ninety (90) days after proposed Preemptive Rights Transaction, free of any right on the expiration part of such ten (10) day periodNon-Responding Holders, it shall be required to again comply with as the case may be, under this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued 6 in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesrespect thereof.
Appears in 1 contract
Samples: Stockholders Agreement (Williams Communications Group Inc)
Preemptive Rights. In The Company hereby grants to the event that Purchaser the preemptive right to acquire a percentage of any additional common shares, or debt or equity securities convertible into common shares (collectively, “Preemptive Right Securities”) the Company proposes may issue such that, if such right is exercised, Purchaser would own, immediately following such issuance, the same percentage of the outstanding Common Shares owned by the Purchaser as the percentage owned by Purchaser immediately preceding any such issuance (assuming for purposes of calculating percentages the conversion of all outstanding convertible equity securities or debt owned by the Purchaser or issued by the Company and the exercise of all outstanding warrants, options or other rights to issue acquire Common Shares owned by the Purchaser or sell any New Securities (as defined belowissued by the Company) to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities NoticePurchaser’s Pro Rata Amount”) to each Institutional Co-Investor (eachprovided, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities)however, identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing that the number of shares issuable to the Purchaser shall not exceed the amount which would require shareholder approval under the principal securities exchange for the Company’s common shares. This preemptive right shall terminate in the event the Purchaser holds less than 10% of the outstanding Common Shares of the Company. This preemptive right shall also terminate on the fourth anniversary of the approval for listing of the Common Stock held by such Preemptive Rights Offeree by on the aggregate number of shares of NASDAQ National Market, the New York Stock Exchange or the American Stock Exchange (the “Listing Exchange”); provided, however, in the event the Common Stock at any time thereafter shall not be listed on the Listing Exchange or on another nationally recognized securities exchange, the preemptive rights shall be reinstated, subject to any other independent basis for termination (including as provided in the immediately preceding sentence). This preemptive right shall not apply to: (i) securities of the Company outstanding immediately prior issued or sold pursuant to the proposed agreements or warrants set forth on Schedule 3.2; (ii) the issuance of New capital stock or warrants, options or other rights to acquire capital stock currently outstanding or that may hereafter be granted by the Company to any COMMON SHARE PURCHASE AGREEMENT officer, employee, consultant or director under any existing or future option plan, incentive plan or other benefit plan of the Company or under any option, warrant or other right to acquire capital stock that is or has been approved by the shareholders of the Company; (iii) securities of the Company issued in connection with the acquisition of oil and gas properties or other oil and gas assets or the equity interests of any entity owning such assets; or (iv) with respect to a merger, plan of exchange or other combination involving the Company that requires the approval of the shareholders of the Company and with respect to which such approval is obtained. Subject to the other provisions of this Section 1.3, upon the issuance by the Company of Preemptive Right Securities, calculated the Purchaser shall have the right to purchase the Purchaser’s Pro Rata Amount of the Preemptive Right Securities for the same cash purchase price and on a fully dilutedthe same terms as the other purchasers of such Preemptive Right Securities, except in the case of an underwritten public offering of securities registered under the Securities Act of 1933, as converted basis. Such election amended (the “Securities Act”) or the securities legislation and regulations of the securities regulatory authorities (including the Toronto Stock Exchange) of any applicable jurisdiction, or jurisdictions collectively, in Canada (the “Canadian Securities Laws”), in which case the Purchaser’s purchase price shall be made by delivering the cash purchase price at which the Preemptive Right Securities are offered to the public. Upon receipt of written notice from the Company of the Company’s intent to issue Preemptive Right Securities, the Purchaser shall provide written notice to the Company of its intent to exercise or not to exercise its preemptive rights within 10 days of the Purchaser’s receipt of such election (notice from the “Notice Company. Failure of Election”) specifying the number Purchaser to provide notice within such 10 days shall be deemed to be a waiver of shares such preemptive rights. Any issuance of Common Stock that it elects Preemptive Right Securities for cash not completed within 90 days of the date notice is provided by the Company to purchase the Purchaser as provided in an amount up to, but not exceeding, its pro rata portion. A the preceding sentence hereof shall be deemed to be a new issuance of Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights Right Securities to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiessubparagraph applies.
Appears in 1 contract
Samples: Common Share Purchase Agreement (Gastar Exploration LTD)
Preemptive Rights. Each Investor shall have preemptive rights with respect to any future equity issuances by the JV Entities other than equity issuances (i) in connection with an employee stock option plan or other bona fide employment compensation arrangement that is approved by the Board of such JV Entity, (ii) as consideration in connection with a bona fide acquisition by the JV Entity or any of its Subsidiaries or (iii) pursuant to an IPO. Accordingly, prior to issuing any additional equity interests in the JV Entity to any Person, except as provided above, the JV Entity must give each Investor a notice (an “Issuance Notice”) of the JV Entity’s intention to make such issuance. The Issuance Notice shall describe the type of additional equity interests, and the price and terms upon which it proposes to issue such additional equity interests. Each Investor shall have fifteen (15) Business Days (the “Issuance Notice Window”) from the date of receipt of the Issuance Notice to agree to purchase up to its pro rata portion (based on each Party’s then Percentage Interest in such JV Entity) of such additional equity interests for the price and upon the terms specified in the Issuance Notice by giving written notice to the JV Entity and stating therein the quantity of additional equity interests elected to be purchased. Any issuance to an Investor pursuant to an exercise of its preemptive rights under this Section 2.4 shall be consummated within fifteen (15) Business Days following the Issuance Notice Window. In the event that any Investor fails to exercise in full the preemptive rights set forth in this Section 2.4 within the Issuance Notice Window, the JV Entity shall have fifteen (15) Business Days thereafter to issue the additional interests not elected to be purchased under this Section 2.4 at the price and upon terms no more favorable to the purchasers than specified in the Issuance Notice. In the event that the Company proposes to JV Entity has not sold such additional equity interests within such subsequent fifteen (15) Business Day period, the JV Entity shall not thereafter issue or sell any New Securities (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to additional equity interests without first offering such additional equity interests in the consummation of such transaction, give notice manner provided in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securitiesthis Section 2.4. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion obligations of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion JV Entities and the rights of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with Investors under this Section 3 prior to effectuating any such sale. For purposes 2.4 shall terminate upon an IPO of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesJV Entity.
Appears in 1 contract
Samples: Framework Agreement (Memc Electronic Materials Inc)
Preemptive Rights. In If, after the event Closing Date, the Company shall propose to issue or sell New Securities or enters into any contracts, commitments, agreements, understandings or arrangements of any kind relating to the issuance or sale of any New Securities and a Purchaser still holds twenty percent (20%) of the Convertible Preferred Stock acquired hereby by such Purchaser, then each such Purchaser shall have the right to purchase that number of New Securities at the same price and on the same terms proposed to be issued or sold by the Company so that such Purchaser would after the issuance and sale of all such New Securities, hold the same proportional interest of the then outstanding shares of Common Stock (assuming that any outstanding securities or other rights, including the Convertible Preferred Stock, convertible or exchangeable into or exercisable for Common Stock have been converted, exchanged or exercised) as was held by such Purchaser immediately prior to such issuance and sale (the "Proportionate Percentage"). The Company shall give each Purchaser written notice of its intention to issue and sell New Securities, describing the type of New Securities, the price and the general terms and conditions upon which the Company proposes to issue the same. Each Purchaser shall have twenty-five (25) days from the giving of such notice to agree to purchase all (or any part) of its Proportionate Percentage of New Securities for the price and upon the terms and conditions specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If Purchasers fail to exercise in full such right within twenty-five (25) days, the Company shall have one hundred twenty-five (125) days thereafter to sell the New Securities in respect of which Purchasers' rights were not exercised, at a price and upon general terms and conditions no more favorable to the buyers thereof than specified in the Company's notice to Purchasers pursuant to this Section. If the Company has not sold the New Securities within such one hundred twenty-five (125) day period, the Company shall not thereafter issue or sell any New Securities, except by giving Purchasers the right to purchase their Proportionate Percentage in the manner provided above. Shelf Registration. ------------------- Within 45 days after the Closing Date, the Company shall prepare and file with the SEC a Registration Statement for an offering to be made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf Registration") registering the resale from time to time by Purchasers of all of the Registrable Securities (the "Initial Shelf Registration"). The Registration Statement for any Shelf Registration shall be on Form S-3 or another appropriate form permitting registration of such Registrable Securities for resale by Purchasers in the manner or manners designated by them. The Company shall use its best efforts to cause the Initial Shelf Registration to become effective under the Securities Act as promptly as is practicable and to keep the Initial Shelf Registration continuously effective under the Securities Act until the end of the Effectiveness Period. If the Company fails to file the Initial Shelf Registration within 45 days after the Closing Date, then, unless such a delay is attributable to any Purchaser not timely providing information reasonably requested by the Company, the dividend payable upon the Convertible Preferred Stock shall increase to 15% per annum until such Initial Shelf Registration is filed. In such instance, upon filing such Initial Shelf Registration, the dividend shall revert to 5%. Notwithstanding the foregoing, until the Initial Shelf Registration is declared effective by the Securities and Exchange Commission, no shares of Convertible Preferred Stock shall be converted pursuant to Section 4(b) of the Certificate of Designation. If the Initial Shelf Registration or any Subsequent Shelf Registration (as defined below) ceases to Apollo LP be effective for any reason at any time during the Effectiveness Period (other than because all Registrable Securities shall have been sold or shall have ceased to be Registrable Securities), the Company shall use its best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within thirty days of such cessation of effectiveness amend the Shelf Registration in a manner reasonably expected to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Shelf Registration covering all of the Registrable Securities (a "Subsequent Shelf Registration"). If a Subsequent Shelf Registration is filed, the Company shall use all reasonable efforts to cause the Subsequent Shelf Registration to become effective as promptly as is practicable after such filing and to keep such Registration Statement continuously effective until the end of the Effectiveness Period. The Company shall supplement and amend the Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration, if required by the Securities Act or the SEC, or if reasonably requested by Purchasers. From time to time, the Company shall prepare and file with the SEC a post-effective amendment to the Shelf Registration or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or any other required document, so that such Registration Statement will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provide Purchasers copies of any documents filed in such numbers as Purchasers shall reasonably request; and inform Purchasers that the Company has complied with its obligations and that the Registration Statement and related Prospectus may be used for the purpose of selling all or any of its Affiliates such Registrable Securities (other than GNC LLC)or that, it shall, no later than ten (10) days prior if the Company has filed a post-effective amendment to the consummation Shelf Registration which has not yet been declared effective, the Company will notify Purchasers to that effect, will use its best efforts to secure promptly the effectiveness of such transaction, give notice in writing (post-effective amendment and will immediately so notify Purchasers when the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securitiesamendment has become effective), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securities.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Cahill Edward L)
Preemptive Rights. In the event that If the Company hereafter proposes to issue or sell any New Securities (as defined below) of its equity securities or any securities containing options or rights to Apollo LP or acquire any of its Affiliates equity securities or any securities convertible into equity securities (other than GNC LLC), it shall, no later than ten (10as a dividend on outstanding shares of the Common Stock) days prior the Company shall first offer to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, Subscriber a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt number or amount of such notice, each Preemptive Rights Offeree shall have ten securities proposed to be so sold equal to the product of (10a) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of the Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated (on a fully diluted, as an as-converted basis. Such election shall ) or other securities proposed to be made so issued and sold multiplied by delivering written notice to (b) a fraction, the Company numerator of such election (the “Notice of Election”) specifying which is the number of shares of the Common Stock that it elects then owned by Subscriber prior to such issuance and the denominator of which is the total number of shares of the Common Stock then issued and outstanding, for the same price and upon the same terms and conditions as the securities are being offered in such transaction (the “Preemptive Right”). The Company shall make such offer to Subscriber by providing a notice (the “Preemptive Notice”) which shall set forth the price, timing, and terms and conditions of the proposed issuance of such new securities. Subscriber may exercise its right to purchase the securities by delivering to the Company within 30 days of receipt of the Preemptive Notice, irrevocable notice of acceptance of the proposed sale on the terms specified in the Preemptive Notice, and payment for such securities to be purchased. The Preemptive Right shall be deemed waived by Subscriber if it does not deliver an amount up toirrevocable notice of acceptance of the proposed sale, but not exceedingand adequate payment for the securities, its pro rata portion. A within 30 days of the Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is relatedhaving been given. If Subscriber does not elect to exercise its Preemptive Right, then, subject to compliance with this Agreement, the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required entitled to again comply with sell part or all of those securities to such person or financial institution as it may determine. Notwithstanding any provision in this Section 3 prior to effectuating any such sale. For purposes of this Section 3the contrary, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities Subscriber shall not include shares of capital stock or convertible securities: have any preemptive right to purchase (ia) issued upon the exercise of any convertible securities; (ii) equity securities issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a employee stock split option or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to compensation plans approved by the Board board of Directors; (vi) issued directors of the Company pursuant to a which shares are issued to officers, directors or employees of the Company for compensatory purposes or to unaffiliated consultants, suppliers and contractors to the Company in exchange for bona fide services rendered or (b) equity securities issued as consideration to an unaffiliated third party in connection with any merger, consolidation, strategic alliance, or acquisition or similar business combination; (vii) issued pursuant to which the Company is a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesparty.
Appears in 1 contract
Preemptive Rights. In the event that If the Company proposes to issue or sell any Common Stock, or any other class of capital stock, or any warrants, options or rights to acquire, convertible into or exchangeable for any shares of capital stock of the Company, or any security having a direct or indirect equity participation in the Company (for purposes hereof, "New Securities"), other than (i) in a public offering registered under the Securities Act, (ii) pursuant to a stock split, dividend or other recapitalization, or the issuance of Common Stock upon the conversion of the Series A Preferred Stock or Series B Preferred Stock, (iii) pursuant to the Employee Stock Option Plan or in connection with the exercise of currently outstanding warrants (or warrants issued in exchange therefor with like terms for a like number of shares of Common Stock but with an exercise price greater than the exercise price of the original warrant) or currently outstanding options or options received pursuant to the Employee Stock Option Plan or (iv) with the consent of holders of at least 66 2/3% of the outstanding Series A Preferred Stock and holders of at least 66 2/3% of the outstanding Series B Preferred Stock, then the Company shall deliver written notice thereof to each of the Stockholders setting forth the number, terms and purchase consideration (or if such purchase consideration is not expressed in cash, the fair market value cash equivalent thereof determined in good faith by the Board of Directors of the Company) of the New Securities which the Company proposes to issue. Each such Stockholder shall thereupon have the right, unless otherwise agreed in writing by such Stockholder in advance, to elect to purchase on the same terms and conditions (including consideration or the cash equivalent thereof) as defined below) those offered to Apollo LP or any third party that number of its Affiliates New Securities proposed to be issued as would maintain such Stockholder's relative proportional equity interest in the Company. Such Stockholder may make such election by written notice to the Company within twenty (other than GNC LLC), it shall, no later than ten (1020) days prior to the consummation of such transaction, give receipt of notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such any proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) If a Stockholder does not elect to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s purchase its pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten Securities within twenty (1020) days during which it may elect to purchase a of the date of the foregoing notice (the "Preemptive Notice Period"), this pro rata portion of purchase right shall terminate with respect to the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the written notice delivered to that party (but not with respect to any future proposed sales of New Securities Notice by the Company), and the Company may, in its sole discretion, sell to third parties within ninety (90) days after such Stockholder's receipt of the notice of the proposed issuance of New Securities any or all of the New Securities described in such written notice with respect to which the purchase right was not exercised, but only on the terms and conditions set forth in such written notice to the Stockholders. Subject to the Company's rights under the preceding sentence, in which case any purchases by existing Stockholders would be made at the closing and upon the terms of the sale of New Securities to the third party permitted by the preceding sentence, the closing of the purchase of the New Securities by the Stockholders shall take place at the principal office of the Company on the thirtieth (30th) business day after the expiration of the Preemptive Notice Period (or after the receipt of any required governmental consents or approvals). At such ten (10) day periodclosing, it shall be required the Stockholders desiring to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that purchase New Securities shall not include shares of capital stock deliver a certified check or convertible securities: (i) issued upon checks in the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant appropriate amount to the exercise Company against delivery of options or other stock-based incentive awards granted certificates representing the New Securities so purchased. The Company shall not sell any New Securities to consultantsany Person unless such Person agrees, advisorsin form and substance reasonably satisfactory to the Stockholders, employees, officers or directors pursuant to plans approved be bound by the Board of Directors; (vi) issued pursuant to terms hereof as a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesStockholder.
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Preemptive Rights. In If, after the event Closing Date, the Company shall propose to issue or sell New Securities or enters into any contracts, commitments, agreements, understandings or arrangements of any kind relating to the issuance or sale of any New Securities and a Purchaser still holds twenty percent (20%) of the Convertible Preferred Stock acquired hereby by such Purchaser, then each such Purchaser shall have the right to purchase that number of New Securities at the same price and on the same terms proposed to be issued or sold by the Company so that such Purchaser would after the issuance and sale of all such New Securities, hold the same proportional interest of the then outstanding shares of Common Stock (assuming that any outstanding securities or other rights, including the Convertible Preferred Stock, convertible or exchangeable into or exercisable for Common Stock have been converted, exchanged or exercised) as was held by such Purchaser immediately prior to such issuance and sale (the "Proportionate Percentage"). The Company shall give each Purchaser written notice of its intention to issue and sell New Securities, describing the type of New Securities, the price and the general terms and conditions upon which the Company proposes to issue or sell any New Securities the same. Each Purchaser shall have twenty-five (as defined below25) days from the giving of such notice to Apollo LP agree to purchase all (or any part) of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance Proportionate Percentage of New Securities (including for the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for upon the same consideration to be paid terms and conditions specified in the notice by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If Purchasers fail to exercise in full such election right within twenty-five (25) days, the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election Company shall have no further preone hundred twenty-emptive rights five (125) days thereafter to which sell the New Securities Notice is relatedin respect of which Purchasers' rights were not exercised, at a price and upon general terms and conditions no more favorable to the buyers thereof than specified in the Company's notice to Purchasers pursuant to this Section. If the Company does has not effectuate such sale described in sold the New Securities Notice within ninety such one hundred twenty-five (90) days after the expiration of such ten (10125) day period, it the Company shall be required to again comply with this Section 3 prior to effectuating not thereafter issue or sell any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of , except by giving Purchasers the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon right to purchase their Proportionate Percentage in the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesmanner provided above.
Appears in 1 contract
Preemptive Rights. In the event that If the Company proposes shall issue any shares of Common Stock, rights, options, or warrants to issue purchase shares of Common Stock, or sell securities of any type whatsoever that are, or may become, convertible into shares of Common Stock, other than the shares issued or issuable as set forth on Exhibit "B" attached hereto, (collectively, "New Securities (as defined belowSecurities") the Holder of this Warrant shall be entitled to Apollo LP purchase its pro rata share of all or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price part of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase provided in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale6. For purposes of this Section 36, “the term "pro rata share" shall mean such share as would be necessary to permit the Holder to maintain a percentage interest in the Company (determined on a fully diluted basis assuming the exercise of any and all outstanding options or warrants and the conversion of any securities convertible into shares of Common Stock) equal to the Holder's percentage interest in the Company immediately prior to such issuance of New Securities (determined on a fully diluted basis). In the event the Company proposes to undertake an issuance of New Securities” , it shall mean give the Holder written notice of its intention, describing the type of New Securities and the price and terms upon which the Company proposes to issue the same. The Holder shall have ten business days from the date of receipt of any shares such notice to agree to purchase up to its pro rata share of capital stock such New Securities for the price and upon the terms specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. In the event the Holder fails to exercise such right of purchase within said ten business day period, the Company shall have 90 days thereafter to complete the sale of the New Securities at the price and upon terms no more favorable to the purchasers of such New Securities than those specified in the Company's notice to the Holder. In the event the Company has not sold the New Securities within such 90-day period, the Company shall not thereafter issue or sell any of such New Securities without first complying with the terms of this Section 6. Notwithstanding anything to the contrary contained herein, should the existence of the preemptive rights in favor of the Holder pursuant to this paragraph have a material adverse effect on the ability of the Company to consummate the sale of New Securities, then the Company shall so advise the Holder in writing and all securities that are convertible into capital stockthe Holder agrees to waive the preemptive rights granted pursuant to this Section 6; provided, however, that the Company shall use commercially reasonable best efforts to attempt to persuade any purchaser of New Securities or underwriter involved in selling such New Securities to permit the Holder to retain such preemptive rights. In the event that the Holder fails to exercise its preemptive rights under this paragraph on two separate occasions, then the Holder's rights under this paragraph shall not include shares of capital stock or convertible securities: (i) issued terminate upon the exercise occurrence of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiessecond such failure.
Appears in 1 contract
Samples: Gexa Corp
Preemptive Rights. In the event that If the Company hereafter proposes to issue to, directly or indirectly, sell any New Securities (as defined below) to Apollo LP or any of its Affiliates equity securities or any securities containing options or rights to acquire any of its equity securities or any securities convertible into or exchangeable for equity securities (other than GNC LLC), it shall, no later than ten (10a) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of the Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated (on a fully diluted, as an as-converted basis. Such election shall ) or other securities proposed to be made so issued and sold multiplied by delivering written notice to (b) a fraction, the Company numerator of such election (the “Notice of Election”) specifying which is the number of shares of the Common Stock that it elects (on an as-converted basis) then owned by Subscriber prior to such issuance and the denominator of which is the total number of shares of the Common Stock then issued and outstanding, for the same price and upon the same terms and conditions as the securities are being offered in such transaction (the “Preemptive Right”). The Company shall make such offer to Subscriber by providing a notice (the “Preemptive Notice”) which shall set forth the price, timing, and terms and conditions of the proposed issuance of such new securities. Subscriber may exercise its right to purchase the securities by delivering to the Company within 30 days of receipt of the Preemptive Notice, irrevocable notice of acceptance of the proposed sale on the terms specified in the Preemptive Notice, and payment for such securities to be purchased. The Preemptive Right shall be deemed waived by Subscriber if it does not deliver an amount up toirrevocable notice of acceptance of the proposed sale, but not exceedingand adequate payment for the securities, its pro rata portion. A within 10 days of the Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is relatedhaving been given. If Subscriber does not elect to exercise its Preemptive Right, then, subject to compliance with this Agreement, the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required entitled to again comply with sell part or all of those securities to such person or financial institution as it may determine. Notwithstanding any provision in this Section 3 prior to effectuating any such sale. For purposes of this Section 3the contrary, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities Subscriber shall not include shares of capital stock or convertible securities: have any preemptive right to purchase (ia) issued upon the exercise of any convertible securities; (ii) equity securities issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a employee stock split option or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to compensation plans approved by the Board board of Directors; (vi) issued directors of the Company pursuant to a which shares are issued to officers, directors or employees of the Company for compensatory purposes or to unaffiliated consultants, suppliers and contractors to the Company in exchange for bona fide services rendered or (b) equity securities issued as consideration to an unaffiliated third party in connection with any merger, consolidation, strategic alliance, or acquisition or similar business combination; (vii) issued pursuant to which the Company is a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesparty.
Appears in 1 contract
Preemptive Rights. In the event that case the Company proposes to issue or sell any New Securities (as defined below) to Apollo LP either ACI and/or DBCP or any of its Affiliates (other than GNC LLC)their respective Affiliates, it the Company shall, no later than ten thirty (1030) days Business Days prior to the consummation of such transaction, give notice in writing (the “"New Securities Notice”") to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) SJF of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “"Preemptive Rights Offer”") to sell to each Preemptive Rights Offeree, SJF at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s SJF's pro rata portion of the New SecuritiesSecurities to be issued to ACI and/or DBCP. Following receipt of such notice, each Preemptive Rights Offeree SJF shall have ten twenty (1020) days Business Days during which it may elect to purchase a pro rata portion of the New Securities proposed to be issued to ACI and/or DBCP, determined by dividing the number of shares of Common Stock Shares held by such Preemptive Rights Offeree SJF by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to Shares held by all Stockholders before the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten twenty (1020) day Business Day period, it the Company shall be required to again comply with this Section 3 6 prior to effectuating any such sale. For purposes of Notwithstanding the foregoing, this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities 6 shall not include shares of capital stock or convertible securities: apply to (i) shares of Common Stock issued to ACI and/or DBCP upon the their exercise of any convertible securitiesConvertible Securities, including, without limitation, the Warrants; (ii) issued in connection with any payment-in-kind interestinterest payable to ACI and/or DBCP pursuant to that certain Junior Subordinated Debt Facility, dated as of _____________, among _________________; (iii) issued in connection with dividends payable in kind, if and when declared, on the Preferred Stock; (iv) issued dividends or distributions on its Securities payable in connection with a stock split shares of its Common Stock or recapitalization; other equity interests of the Company, (v) granted or issued pursuant to a subdivision of the exercise Company's outstanding shares of options or other stock-based incentive awards granted to consultantsCommon Stock into a larger number of shares of Common Stock, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition combination of the Company's outstanding shares of Common Stock into a smaller number of shares of Common Stock or similar business combination; (vii) issued pursuant to a registration statement filed under an increase or decrease in the Securities Act; or (viii) issued in connection with borrowing or number of shares of Common Stock outstanding by reclassification of the issuance of debt securitiesCompany's Common Stock.
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Preemptive Rights. In the event (a) The Company agrees that the Company proposes to issue it will not offer or sell any New Securities (as defined belowherein) to Apollo LP or any of its Affiliates (other than GNC LLC), unless it shall, no later than ten (10) days prior first offers to the consummation of such transaction, give notice in writing (Purchaser the “New Securities Notice”) right to each Institutional Co-Investor (each, purchase a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price portion of such New Securities in accordance with, and subject to, the provisions of this Section 9.3. If the Company proposes to sell any New Securities, other than pursuant to a Non-Eligible Public Offering (as defined herein), identify then the Company shall provide the Purchaser with written notice of the terms or proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and terms for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion sale of the New Securities determined (the “Notice”). If the Purchaser wishes to purchase New Securities pursuant to the Notice, it shall notify the Company by dividing written notice within five business days after the Notice is delivered how many of such New Securities it desires to purchase. The Purchaser shall be entitled to purchase up to a number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock New Securities equal to its pro rata percentage ownership of the Company outstanding immediately prior to on the proposed issuance of New SecuritiesClosing Date, calculated on a fully diluteddiluted basis (the “Percentage Interest”). If the Purchaser does not elect to purchase all of its Percentage Interest, as converted basis. Such election the Company shall be made have the right to complete the sale of any New Securities offered to but not purchased by delivering written notice the Purchaser upon terms no less favorable to the Company of than those specified in the Notice. The Purchaser shall not have any preemptive rights with respect to any New Securities sold by the Company in a Public Offering (as defined herein) unless in such election Public Offering (the “Notice of Election”i) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If are anticipated to be priced at more than a 10% discount to the volume weighted average closing market price of the Common Stock on the NYSE during the three – trading day period immediately prior to the date of the Notice, based on the indicative range advised by the underwriters of such Public Offering or (ii) the Company does not effectuate such sale sells more than 20% of its outstanding Common Stock in a Public Offering (any Public Offering other than a Public Offering described in the New Securities Notice within ninety (90i) days after the expiration or (ii) above, a “Non-Eligible Public Offering”). In either of such ten (10) day periodevents, it the Purchaser shall be required have the right to again comply with this Section 3 prior subscribe for up to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stockits Percentage Interest; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the it must exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant this right prior to the exercise anticipated pricing of options or other stock-based incentive awards granted such Public Offering. The Company agrees to consultants, advisors, employees, officers or directors pursuant provide written notice to plans approved by the Board Purchaser of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed Public Offering in which the Purchaser has preemptive rights as promptly as practicable under the Securities Act; or (viii) issued circumstances, and in connection with borrowing or any event prior to the issuance pricing of debt securitiessuch Public Offering.
Appears in 1 contract
Samples: Securities Purchase Agreement (Cedar Shopping Centers Inc)
Preemptive Rights. In 2.1 Except for (i) grants of options to acquire Xxxxxxxx Common Stock under Xxxxxxxx'x employee and consultant benefit plans adopted by Xxxxxxxx and except for Xxxxxxxx Common Stock issued upon exercise of such options granted pursuant to such plans; (ii) shares of Xxxxxxxx Common Stock issued upon conversion of the event that 15,000 shares of Series B Convertible Preferred Stock of Xxxxxxxx and upon payment of dividends with respect to such shares; (iii) shares of preferred stock, Common Stock or rights of Xxxxxxxx issued pursuant to Xxxxxxxx'x Rights Agreement dated June 16, 1996 with Norwest Bank Minnesota, N.A., as amended, (the Company proposes "RIGHTS AGREEMENT"); (iv) shares of Series D Convertible Preferred Stock of Xxxxxxxx and shares of Xxxxxxxx Common Stock issued upon conversion thereof and upon payment of dividends with respect to such preferred stock; and (v) shares issued upon exercise of warrants outstanding on the date of this Agreement (including all warrants issued or to be issued with respect to the Series D Convertible Preferred Stock), Xxxxxxxx will give Molex written notice of its intention to issue additional Xxxxxxxx Common Stock or sell any New Securities securities or debt convertible into, or exercisable or exchangeable for, shares of Xxxxxxxx Common Stock, including options and warrants (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLCthe "CONVERTIBLE SECURITIES"), it shallin a private or public equity or debt offering. If such notice is given by Xxxxxxxx, no later than ten (10) days Molex shall have the right to purchase a portion of such Xxxxxxxx Common Stock or Convertible Securities in such number which, when combined with the Xxxxxxxx Common Stock owned beneficially by Molex, will equal the percentage of the issued and outstanding Xxxxxxxx Common Stock after such purchase which Molex beneficially owned immediately prior to the consummation issuance of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New additional Xxxxxxxx Common Stock or Convertible Securities (and including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and solely for the same consideration to be paid by the proposed purchaser(s), all or part purpose of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing determining the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding Molex beneficially owned immediately prior to the proposed such issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares issued by Xxxxxxxx during the term of Common Stock that it elects this Agreement in transactions described in Section 2.4 below which Molex would have been entitled to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration as a result of such ten transaction (10and which were not purchased under the second or fifth sentence of Section 2.4) day period, it shall be required to again comply with if the rights in this Section 3 prior 2.1 would have applied to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stockissuance); providedin no event, however, that New Securities shall not include shares of capital stock or convertible securities: (i) Molex's ownership following any purchase under this Section 2.1 exceed 15% of the issued upon the exercise of any convertible securitiesand outstanding Xxxxxxxx Common Stock (as determined pursuant to Section 4.1); or (ii) issued Molex's Beneficial Ownership (as defined in connection with payment-in-kind interest; the Rights Agreement) following such purchase result in Molex being an "Acquiring Person" (iii) issued as defined in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesRights Agreement).
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Preemptive Rights. In the event (a) The Company agrees that the Company proposes to issue it will not offer or sell any New Securities (as defined belowherein) to Apollo LP or any of its Affiliates (other than GNC LLC), unless it shall, no later than ten (10) days prior first offers to the consummation of such transaction, give notice in writing (Purchaser the “New Securities Notice”) right to each Institutional Co-Investor (each, purchase a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price portion of such New Securities in accordance with, and subject to, the provisions of this Section 9.3. If the Company proposes to sell any New Securities, other than pursuant to a Non-Eligible Public Offering (as defined herein), identify then the Company shall provide the Purchaser with written notice of the terms or proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and terms for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion sale of the New Securities determined (the “Notice”). If the Purchaser wishes to purchase New Securities pursuant to the Notice, it shall notify the Company by dividing written notice within five business days after the Notice is delivered how many of such New Securities it desires to purchase. The Purchaser shall be entitled to purchase up to a number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock New Securities equal to its pro rata percentage ownership of the Company outstanding immediately prior to on the proposed issuance of New SecuritiesClosing Date, calculated on a fully diluteddiluted basis (the “Percentage Interest”). If the Purchaser does not elect to purchase all of its Percentage Interest, as converted basis. Such election the Company shall be made have the right to complete the sale of any New Securities offered to but not purchased by delivering written notice the Purchaser upon terms no less favorable to the Company of than those specified in the Notice. The Purchaser shall not have any preemptive rights with respect to any New Securities sold by the Company in a Public Offering (as defined herein) unless in such election Public Offering (the “Notice of Election”i) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If are anticipated to be priced at more than a 10% discount to the volume weighted average closing market price of the Common Stock on the NYSE during the three — trading day period immediately prior to the date of the Notice, based on the indicative range advised by the underwriters of such Public Offering or (ii) the Company does not effectuate such sale sells more than 20% of its outstanding Common Stock in a Public Offering (any Public Offering other than a Public Offering described in the New Securities Notice within ninety (90i) days after the expiration or (ii) above, a “Non-Eligible Public Offering”). In either of such ten (10) day periodevents, it the Purchaser shall be required have the right to again comply with this Section 3 prior subscribe for up to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stockits Percentage Interest; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the it must exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant this right prior to the exercise anticipated pricing of options or other stock-based incentive awards granted such Public Offering. The Company agrees to consultants, advisors, employees, officers or directors pursuant provide written notice to plans approved by the Board Purchaser of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed Public Offering in which the Purchaser has preemptive rights as promptly as practicable under the Securities Act; or (viii) issued circumstances, and in connection with borrowing or any event prior to the issuance pricing of debt securitiessuch Public Offering.
Appears in 1 contract
Samples: Securities Purchase Agreement (Cedar Shopping Centers Inc)
Preemptive Rights. In If, prior to a Qualified Public Offering, the event Company shall issue any Equity Securities, each Purchaser shall be entitled to purchase the portion of such Equity Securities to be issued necessary in order that the Company proposes to issue or sell any New Securities (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of aggregate shares of Common Stock held by such Preemptive Rights Offeree by Purchaser and his Permitted Transferees constitute the aggregate number same percentage of shares the Outstanding Common Stock after the issuance of such Equity Securities as before the issuance thereof; PROVIDED, HOWEVER, that such preemptive right shall not apply to (a) issuances of Common Stock or Equity Securities (1) pursuant to or in connection with a Qualified Public Offering or (2) pursuant to an Approved Plan, (b) issuances to third parties as consideration for acquisitions by the Company, (c) issuances of Common Stock or Equity Securities upon the conversion, exercise or exchange of Equity Securities to which the preemptive right was applicable (d) issuances of Common Stock or Equity Securities in connection with an exercise of the preemptive rights granted hereunder, (e) issuances of Warrant Shares upon exercise of Warrants, or (f) issuances of Equity Securities contemplated in this Agreement. The price of Equity Securities that each Purchaser becomes entitled to purchase by reason hereof shall be the same price at which such Equity Securities are offered to others. If such Equity Securities are being offered in combination with any other Equity Securities that are not Common Stock or convertible into Common Stock, each Purchaser electing to exercise his preemptive right hereunder must also purchase such other Equity Securities in the same proportion as such other Equity Securities are being purchased by others. A Purchaser may exercise his right under this paragraph 8 to purchase Equity Securities by paying the purchase price therefor at the principal office of the Company outstanding at the same time as the purchase price is paid by others in connection with the issuance giving rise to the rights granted hereunder. The Company shall give the Purchasers notice of any such issuance (which notice by the Company shall be given at least 35 calendar days before the issuance of the Equity Securities) stating the number or amount of Equity Securities (including the other Equity Securities, if any) it intends to issue, the price and characteristics thereof and the date payment therefor must be made. The Purchaser shall pay such purchase price by wire transfer of immediately available funds, to the extent such purchase price is cash. A Purchaser's contractual preemptive rights hereunder shall be deemed to be exercised immediately prior to the proposed issuance close of New Securitiesbusiness on the day of payment of the purchase price in accordance with the foregoing provisions, calculated on a fully diluted, as converted basis. Such election and at such time such Purchaser shall be made by delivering written notice to treated for all purposes as the record holder of the Equity Securities. As promptly as practicable (and in any event within ten calendar days) after the purchase date, the Company of such election (the “Notice of Election”) specifying shall issue and deliver at its principal office a certificate or certificates for the number of full shares or amount, whichever is applicable, of Common Stock that it elects to Equity Securities, together with cash for any fraction of a share or portion of an Equity Security at the purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights price to which the New Securities Notice Purchaser is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesentitled hereunder.
Appears in 1 contract
Preemptive Rights. In 2.1 Except for (i) grants of options to acquire Shelxxxx Xxxmon Stock under Shelxxxx'x xxxloyee and consultant benefit plans adopted by Shelxxxx xxx except for Shelxxxx Xxxmon Stock issued upon exercise of such options granted pursuant to such plans; (ii) shares of Shelxxxx Xxxmon Stock issued upon conversion of the event that 15,000 shares of Series B Convertible Preferred Stock of Shelxxxx xxx upon payment of dividends with respect to such shares; (iii) shares of preferred stock, Common Stock or rights of Shelxxxx xxxued pursuant to Shelxxxx'x Xxxhts Agreement dated June 16, 1996 with Norwest Bank Minnesota, N.A., as amended, (the Company proposes "Rights Agreement"); (iv) shares of Series D Convertible Preferred Stock of Shelxxxx xxx shares of Shelxxxx Xxxmon Stock issued upon conversion thereof and upon payment of dividends with respect to such preferred stock; and (v) shares issued upon exercise of warrants outstanding on the date of this Agreement (including all warrants issued or to be issued with respect to the Series D Convertible Preferred Stock), Shelxxxx xxxl give Molex written notice of its intention to issue additional Shelxxxx Xxxmon Stock or sell any New Securities securities or debt convertible into, or exercisable or exchangeable for, shares of Shelxxxx Xxxmon Stock, including options and warrants (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLCthe "Convertible Securities"), it shallin a private or public equity or debt offering. If such notice is given by Shelxxxx, no later than ten (10) days Xxlex shall have the right to purchase a portion of such Shelxxxx Xxxmon Stock or Convertible Securities in such number which, when combined with the Shelxxxx Xxxmon Stock owned beneficially by Molex, will equal the percentage of the issued and outstanding Shelxxxx Xxxmon Stock after such purchase which Molex beneficially owned immediately prior to the consummation issuance of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New additional Shelxxxx Xxxmon Stock or Convertible Securities (and including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and solely for the same consideration to be paid by the proposed purchaser(s), all or part purpose of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing determining the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding Molex beneficially owned immediately prior to the proposed such issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares issued by Shelxxxx xxxing the term of Common Stock that it elects this Agreement in transactions described in Section 2.4 below which Molex would have been entitled to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration as a result of such ten transaction (10and which were not purchased under the second or fifth sentence of Section 2.4) day period, it shall be required to again comply with if the rights in this Section 3 prior 2.1 would have applied to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stockissuance); providedin no event, however, that New Securities shall not include shares of capital stock or convertible securities: (i) Molex's ownership following any purchase under this Section 2.1 exceed 15% of the issued upon the exercise of any convertible securitiesand outstanding Shelxxxx Xxxmon Stock (as determined pursuant to Section 4.1); or (ii) issued Molex's Beneficial Ownership (as defined in connection with payment-in-kind interest; the Rights Agreement) following such purchase result in Molex being an "Acquiring Person") (iii) issued as defined in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesRights Agreement).
Appears in 1 contract
Preemptive Rights. In (a) Until the event that occurrence of an IPO, if, following the Closing Date, the Company proposes to issue additional Company Shares, any warrants, options or sell other rights to acquire Company Shares, debt securities that are convertible into Company Shares or any New Securities other equity securities of the Company or any direct or indirect majority-owned subsidiary of the Company (as defined belowthe “Participation Shares”) (with the exception of any issuance upon conversion of exercise of warrants to purchase Company Shares or issuance (i) in connection with any merger, acquisition or similar transaction (excluding any issuance for purposes of financing such transaction) and (ii) to Apollo LP or any employees pursuant to an employee incentive plan (in each case, having been approved in accordance with the terms of its Affiliates (other than GNC LLCthis Agreement)), it shall, the Company shall provide written notice to each Stockholder of such anticipated issuance no later than ten fifteen (1015) days Business Days prior to the consummation anticipated issuance date. Such notice shall set forth the material terms and conditions of the issuance, including the proposed purchase price for the new Participation Shares and the anticipated issuance date. Each Stockholder shall have the right to purchase up to its Pro Rata Portion of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, new Participation Shares at the same price and for on the same consideration to be paid by terms and conditions specified in the proposed purchaser(s), all or part of such Preemptive Rights OffereeCompany’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made notice by delivering an irrevocable written notice to the Company of such election no later than three (3) Business Days before the “Notice of Election”) specifying anticipated issuance date, setting forth the number of shares of Common Stock that it elects to purchase in an amount up tosuch new Participation Shares for which such right is exercised, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities no Stockholder shall not have the right to purchase any such new Participation Shares if neither Sponsor exercises its right to purchase any such new Participation Shares. Such notice shall also include shares the maximum number of capital stock or convertible securities: new Participation Shares the Stockholder would be willing to purchase in the event any other Stockholder elects to purchase less than its Pro Rata Portion of such Participation Shares. If any Stockholder fails to elect to purchase its full Pro Rata Portion of such new Participation Shares that it has a right to purchase, the Company shall allocate any remaining amount among the participating Stockholders (ipro rata in accordance with the Company Shares then held by each such participating Stockholder) issued upon the exercise of any convertible securities; (ii) issued who have indicated in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant their notice to the exercise Company a desire to purchase new Participation Shares in excess of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiestheir respective Pro Rata Portions.
Appears in 1 contract
Preemptive Rights. In The Company hereby grants to each SJF Investor, each Investeco Investor, the event that Arborview Investor, the Company proposes Inherent Investor, the Bowie Investor, the Sunrise Investor, the Manna Investor and each Key Holder (in each case, for the purposes of this Section 4, each a “Preemptive Holder”) a preemptive right to issue purchase all or sell any part of such Preemptive Holder’s pro rata share of New Securities (as defined belowin Subsection 4.1) subsequent to Apollo LP or any the date hereof on the same terms and at the same price as offered thereat. A Preemptive Holder’s “pro rata portion,” for purposes of this right of first offer, is the ratio of the number of shares of As Converted Common Stock owned by such Preemptive Holder immediately prior to the issuance of New Securities, to the total number of shares of As Converted Common Stock outstanding prior to the issuance of New Securities, determined on a fully-diluted basis. Each Preemptive Holder shall be entitled to apportion the right of first offer hereby granted it among itself and its Permitted Transferees in such proportions as it deems appropriate. In the event that a Preemptive Holder declines to purchase all of its Affiliates pro rata portion of New Securities, each of the other participating Preemptive Holders shall have a right of over-allotment to purchase such non-purchased New Securities of the non-participating Preemptive Holders on a pro rata basis (other than GNC LLC), it shall, no later than based upon the proportion of the shares of As Converted Common Stock and Preferred Stock owned by such participating Preemptive Holder immediately prior to the issuance of New Securities to all such shares of As Converted Common Stock held by all participating Preemptive Holders) within ten (10) days prior to after the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part date of such Preemptive Rights OffereeHolder’s pro rata portion failure to purchase. This right of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree first offer shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior be subject to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securities.following provisions:
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Preemptive Rights. In 5.1 Preemptive Rights. Prior to the earlier of the Company IPO or the Parent IPO, in the event that the Company proposes to issue or sell any New Securities (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC)Securities, it shall, no later than ten (10) 30 days prior to the consummation of such transaction, give notice in writing (the “"New Securities Notice”") to each Institutional Co-Investor of the Qualified EDS Shareholders (each, a “"Preemptive Rights Offeree”") of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “"Preemptive Rights Offer”") to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s 's pro rata portion (as determined by the next sentence) of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days (the "Preemptive Rights Waiting Period") during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock Ordinary Shares held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company Ordinary Shares outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “"Notice of Preemptive Election”") specifying either (a) the number of shares of Common Stock Ordinary Shares that it elects to purchase in an amount up to, but not exceeding, its pro rata portionportion or (b) that such Preemptive Rights Offeree wishes to purchase its pro rata share of such New Securities as calculated above. A Preemptive Rights Offeree who fails to give such Notice of Preemptive Election shall have no further pre-emptive rights to which the New Securities Notice is relatedrelated and the Company may offer and sell such New Securities as it desires. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) 90 days after the expiration of such ten (10) 30-day period, it shall be required to again comply with this Section 3 4 prior to effectuating any such sale. For purposes Notwithstanding the foregoing, if the Board of Directors of the Company determines, in good faith, that it is desirable for the Company to consummate the issuance or sale of any New Securities prior to the expiration of the Preemptive Rights Waiting Period, then the Company shall be entitled to consummate such transaction prior to the expiration of the Preemptive Rights Waiting Period, provided, that following the consummation thereof, the Company shall promptly take all reasonably necessary and appropriate action to enable each Preemptive Rights Offeree, who otherwise would have given a Notice of Preemptive Election in respect of a Preemptive Rights Offer had the Company effectuated such transaction in accordance with the terms and conditions of this Section 35.1, “to purchase (whether from the Company or from one or more Persons who purchased Ordinary Shares in such transaction) a sufficient number of Ordinary Shares to maintain such Preemptive Rights Offeree's pro rata ownership of Ordinary Shares (as calculated immediately prior to such transaction). Notwithstanding the foregoing, the EDS Shareholders shall not have any New Securities” shall mean any shares Securities issued in connection with the Deed of capital stock Guarantee and Indemnity between Fox Xxxxx Capital Fund II International L.P. and The Governor and Company of the Company and all securities that are convertible into capital stockBank of Scotland; provided, however, that New Securities shall not include shares (a) the Company will, within a reasonably period of capital stock or convertible time after the date hereof, provide any Qualified EDS Shareholders with a right to subscribe for a proportionate interest in the securities to be issued to Fox Xxxxx, and (b) such EDS Shareholders will have at least 30 days to irrevocably commit to purchase such securities: (i) issued upon , at the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kindsame price as Fox Xxxxx Capital Fund II International L.P., if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant such securities are ever sold to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securities.Fox Xxxxx Capital Fund II International L.P.
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Preemptive Rights. In If, at any time after the event that date hereof and for so long as (and during any period in which) the Purchaser's Interest is 10% or greater, the Company proposes determines to issue or sell any New for cash consideration additional Equity Securities (as defined belowcollectively, "NEW SECURITIES") to Apollo LP or any of its Affiliates (Third Party, other than GNC LLC), it shall, no later than ten (10) days prior Equity Securities issued or proposed to the consummation of such transaction, give notice in writing (the “New Securities Notice”) be issued to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and or for the same consideration to be paid by the proposed purchaser(s), all benefit of any Person who serves as an employee or part of such Preemptive Rights Offeree’s pro rata portion director of the New Securities. Following receipt Company in the ordinary course of such noticebusiness, each Preemptive Rights Offeree the Company shall have ten (10) days during which it may elect offer the Purchaser the right to purchase a pro rata certain portion of the New Securities determined as set forth below. Upon any determination by dividing the Company to issue New Securities in respect of which the Purchaser has the right to purchase New Securities as contemplated in the immediately preceding sentence, the Company shall give written notice (the "Notice") to the Purchaser (i) stating the aggregate number of such New Securities proposed to be issued, the terms upon which such New Securities are to be issued (which terms may include an estimated price range for such New Securities (the "Range") and, if the New Securities are to be priced based upon the reported trading or closing prices on a national securities exchange or the Nasdaq of any class of Equity Securities, such terms may include a description of the basis on which such price will be so determined) and the consideration to be paid therefor, (ii) stating the date proposed for issuance of such New Securities (which date, the "TENDER DATE," shall be not less than 10 Business Days after the date on which such Notice is given), and (iii) requesting that the Purchaser indicate in writing within 20 Business Days after its receipt of the Notice the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of New Securities that the Company outstanding immediately prior Purchaser desires to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election purchase (which shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying no greater than the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If as may be required to cause the Company does not effectuate Purchaser's Interest immediately prior to such sale described in issuance of New Securities to equal the Purchaser's Interest immediately following the issuance of the New Securities) and, if applicable, the highest price within the Range at which the purchaser intends to purchase the New Securities (the "Upper Price"). Except as provided above, the Purchaser shall purchase its New Securities on the same terms and for the same price as specified in the Notice, unless such terms have been modified with respect to the Third Party Purchaser(s), in which event the Purchaser shall purchase its New Securities on the terms and for the price paid by such Third Party Purchaser(s); PROVIDED, HOWEVER, that if the modified terms are not acceptable to the Purchaser, the Purchaser may revoke its election to purchase; PROVIDED, FURTHER that if the price is not fixed at time of Notice within ninety (90) days after but a Range was included in the expiration of such ten (10) day periodNotice and the price paid by the Third Party Purchaser is above the Upper Price, it the Purchaser may revoke its election to purchase; PROVIDED, FURTHER that any New Securities to be sold in an underwritten public offering shall be required offered to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3the Purchaser, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon is part of the exercise of any convertible securities; underwritten public offering and subject to its terms or (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant at the Purchaser's option outside the underwritten public offering based on the net consideration to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved be received by the Board Company after deductions of Directors; (vi) issued pursuant to a mergerunderwriters discounts and commissions. Unless otherwise agreed, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or closing of such purchase shall occur on the issuance of debt securitiesTender Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Hybrid Networks Inc)
Preemptive Rights. In If at any time after the event Closing Date and prior to the Cessation Date, the Company shall propose to issue or sell New Securities or enters into any contracts, commitments, agreements, understandings or arrangements of any kind relating to the issuance or sale of any New Securities, then each Lender shall have the right to purchase that number of New Securities at the same price and on the same terms proposed to be issued or sold by the Company so that such Lender would after the issuance and sale of all such New Securities, hold the same proportional interest of the then outstanding shares of Common Stock (assuming that any outstanding securities or other rights, including the Notes, convertible or exchangeable into Common Stock have been converted or exchanged) as was held by such Lender immediately prior to such issuance and sale (the "Proportionate Percentage"). The Company shall give each Lender written notice of its intention to issue and sell New Securities, describing the type of New Securities, the price and the general terms and conditions upon which the Company proposes to issue or sell any New Securities (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securitiessame. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree Each Lender shall have ten (10) days during which it may elect Business Days from the giving of such notice to agree to purchase a pro rata portion all (or any part) of the its Proportionate Percentage of New Securities determined for the price and upon the terms and conditions specified in the notice by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If Lenders fail to exercise in full such election right within ten (10) Business Days, the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election Company shall have no further preone hundred twenty-emptive rights five (125) days thereafter to which sell the New Securities Notice is relatedin respect of which Lenders' rights were not exercised, at a price and upon general terms and conditions no more favorable to the buyers thereof than specified in the Company's notice to Lenders pursuant to this Section. If the Company does has not effectuate such sale described in sold the New Securities Notice within ninety such one hundred twenty-five (90) days after the expiration of such ten (10125) day period, it the Company shall be required to again comply with this Section 3 prior to effectuating not thereafter issue or sell any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of , except by giving Lenders the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon right to purchase their Proportionate Percentage in the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesmanner provided above.
Appears in 1 contract
Samples: Convertible Secured Loan Agreement (Spatialight Inc)
Preemptive Rights. In The Company may at any time issue additional shares of Common Stock to any third party at fair market value, as determined in good faith by a majority of the event directors of the Company, so long as, after such issuance, the Founders' Percentage is not reduced to less than 17%. If the Company intends to issue additional shares of Common Stock to a third party such that the Founders would own in the aggregate less than 17% of the Common Stock, the Company proposes shall deliver to issue or sell any New Securities (as defined below) the Founders a written notice at least 30 days prior to Apollo LP or any of its Affiliates (other than GNC LLC)such proposed issuance. The Founders shall have the right, it shall, no later than ten (10) exercisable upon irrevocable written notice delivered to the Company at least 10 days prior to the consummation date of proposed issuance, to purchase additional shares of Common Stock such transactionthat after such issuance, give notice the Founders would own in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion aggregate no more than 17% of the New Securities. Following receipt of Common Stock; provided that the Founders may exercise their preemptive rights only if the Founders in the aggregate exercise such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect rights with respect to purchase a pro rata portion of the New Securities determined by dividing the maximum number of shares of Common Stock held by permitted hereunder. If some but not all of the Founders exercise such Preemptive Rights Offeree by right, the number of shares issuable to each exercising Founder shall bear the same proportion to the aggregate number of shares of Common Stock of the Company outstanding immediately prior issuable to the proposed issuance of New Securities, calculated on a fully diluted, all exercising Founders as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares held by such exercising Founder prior to such issuance bears to the aggregate of shares held by all exercising Founders. 5.3 FOUNDERS' "TRUE-UP" OPTION On or prior to the last day of the Grace Period, the Founders shall have the option, exercisable by Telcom on behalf of the Founders, to pay to the Company an amount equal to each Shareholder's Loan plus accrued interest thereon (together, the "Antidilution Payment"). The Company shall deliver to Telcom a notice setting forth the calculation of the Antidilution Payment at least 30 days prior to the last day of the Grace Period; provided that the failure of the Company to deliver such calculation in a timely manner shall not affect the parties' rights and obligations hereunder; provided, further, that if such notice is not delivered in a timely manner, Telcom shall pay the Antidilution Payment upon the later of the last day of the Grace Period and 15 days after delivery of such notice. Any Antidilution Payment shall be free of all withholding with respect to taxes of any nature, and if the Founders are required by applicable law to make any such withholding with respect to any such payment, such Antidilution Payment shall be increased so that after making all required withholdings, the Company shall receive an amount equal to the amount it would have received had such withholdings not been made. Upon receipt in full of the Antidilution Payment, the Company shall (a) issue to the Founders on a pro rata basis, based on the number of shares then owned by each Founder, shares of Common Stock such that it elects to purchase in an amount up tothe percentage of the Common Stock owned by the Founders after such transfer equals the Founders' Percentage and (b) repay any Shareholders' Loans, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is relatedincluding accrued interest thereon. If the Founders do not make the Antidilution Payment on the last day of the Grace Period, (a) the Founders' interests in dividends and other cash or noncash distributions by the Company does not effectuate such sale described shall thereafter be proportionate to their respective shareholdings in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible (b) the Company shall convert any Shareholders' Loans, including accrued interest thereon, into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) Common Stock based on the valuation of the Common Stock issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise Shareholders at the time of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securities.relevant Shareholders' Loan. 5.4
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Preemptive Rights. In the event that the Company proposes to issue or sell any New Securities (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety issues any additional ----------------- Ownership Interests (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For including for purposes of this Section 3any Additional Preferred Ownership Interests), “New Securities” shall mean each Member will have the preemptive and preferential right, in proportion to its Ownership Interest in the Company immediately prior to such issuance, to purchase additional Ownership Interests in the Company, upon the same terms and conditions as any shares such new Ownership Interest in the Company, such that each Member will have immediately after such sale of capital stock Ownership Interests the same percentage ownership of the Company and all securities that are convertible into capital stockas such Member had immediately prior to such sale of Ownership Interests; provided, however, that New Securities shall ResNet will have no preemptive rights with respect to the Initial Ownership Interest or any Conversion Ownership Interest or Option Ownership Interest to be issued to TCI-Satellite and provided further that for purposes of determining the percentage ownership of each of the Members in the Company, all of the Initial Ownership Interest and the Conversion Ownership Interest will be deemed to be owned by TCI-Satellite and all of the Option Ownership Interest will be deemed to be owned by TCI-Satellite if it has been issued and, if or to the extent that it has not include shares been issued, all of capital stock or convertible securities: the Option Ownership Interest will be deemed to be owned by TCI-Satellite until such time as the Option Agreement and the Option Warrant have been terminated without issuance of the Option Ownership Interest. If TCI-Satellite is prevented from exercising its preemptive rights to increase its Ownership Interest in the Company due to the Regulatory Restrictions, at the option of TCI-Satellite, either (i) upon payment by TCI-Satellite to the Company of the purchase price for such Ownership Interests, the Company will issue such Ownership Interests into an escrow or voting trust in exchange for receipt of payment therefor that, in the opinion of regulatory counsel reasonably acceptable to the Company, would not violate the Regulatory Restrictions, or (ii) upon payment by TCI-Satellite to the Company of the amount that would be equal to the purchase price for such Ownership Interests, the Company will issue to TCI-Satellite a warrant to acquire such Ownership Interests, in form and substance consistent with the Conversion Warrant. If any issuance of Ownership Interests in the Company is on varying terms, the preemptive rights of the Members hereunder will be at the most favorable price and on the most favorable terms applicable to any purchaser of any such additional Ownership Interests in the Company. If the consideration paid by a purchaser is not cash or cash equivalents, then the price paid by such purchaser will be deemed to be the fair market value of such consideration. The Members' preemptive right to acquire additional Ownership Interests in the Company will extend, without limitation, to Ownership Interests issued upon pursuant to any options, warrants, debentures or debt convertible into Ownership Interests in the Company (which in the case of debt or debentures coupled with warrants will be considered as a unit for purposes of exercise of any convertible securities; (ii) preemptive rights), to Ownership Interests issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if for property or services and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or to Ownership Interests issued pursuant to the exercise of options any option, bonus or other stock-based incentive awards granted to consultants, advisors, employeesplan for the benefit of any of the directors, officers or directors pursuant to plans approved by employees of the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesCompany.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Primestar Inc)
Preemptive Rights. In the event that If the Company proposes or any of its Subsidiaries sells, issues or grants any Equity Securities to any Person (other than a sale by a Subsidiary solely to the Company or one of its wholly owned Subsidiaries), the Company shall deliver to each holder of Warrant Securities in advance of such sale, issuance or grant, a written notice describing in reasonable detail (a) the Equity Securities being offered, (b) the purchase price thereof, (c) the material terms of such Equity Securities and sale, issue or sell any New Securities grant and (d) such holder’s Proportional Share (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Rights Notice”) and offering to sell, issue and/or grant to each Institutional Co-Investor (each, holder of Warrant Securities a “Preemptive Rights Offeree”) portion of such proposed issuance Equity Securities equal to the quotient of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”i) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares Common Shares held by or issuable pursuant to Warrants held by, such holder divided by (ii) the number of Common Stock held by Shares outstanding (such Preemptive holder’s “Proportional Share”) at the most favorable price and on the most favorable terms as such Equity Securities are offered to any other Person. In order to exercise its preemptive rights hereunder, a holder of Warrant Securities must, within 15 business days after receipt of a Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New SecuritiesNotice in accordance with this Section 4, calculated on deliver a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up toexercising its preemptive rights hereunder. If, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of the 15 business day period described in the foregoing sentence with respect to a Rights Notice, a holder of Warrant Securities has not delivered written notice to the Company exercising its preemptive rights hereunder with respect to such ten (10) day periodRights Notice, it then the preemptive rights of such Warrantholder with respect to the Equity Securities issued as set forth in such Rights Notice shall be required expire and have no further force or effect. Any sale, issuance or grant pursuant to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” 4 shall mean any shares of capital stock occur on the closing date of the Company and all securities that are convertible into capital stock; provided, however, that New Securities applicable transaction (which closing date may not be earlier than 10 business days of the date of the Rights Notice). This Section 4 shall not include shares of capital stock apply to any sale, issuance or convertible securitiesgrant: (ia) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kindany equity split, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options dividend, subdivision, combination or other stock-based incentive awards granted to consultants, advisors, employees, officers distribution or directors pursuant to plans approved by recapitalization (so long as all holders of Warrant Securities of the Board same class or series are treated equally with all other holders of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition Warrant Securities of such class or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securities.series);
Appears in 1 contract
Samples: Warrant Purchase Agreement
Preemptive Rights. In If the event Investor's rights pursuant to Section 5(a) are terminated pursuant to Section 5(c)(iii), from and after that time, the Company proposes Investor shall immediately have the preemptive right to issue or sell any purchase its pro rata share of New Securities (as defined below) which the Company may, from time to Apollo LP or any of its Affiliates time, sell and/or issue at the price at which such New Securities are to be issued (other than GNC LLCincluding in an equity financing in which the Threshold Amount is reached), it shall, no later than ten (10) days prior such pro rata share to be determined in the consummation of such transaction, give notice in writing same manner as the Investor's Ownership Percentage (the “New Securities Notice”) to each Institutional Co-Investor (each, a “"Preemptive Rights Offeree”) of such proposed issuance of New SecuritiesShare"). The New Securities Notice shall describe In the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of event the Company outstanding immediately prior proposes to the proposed undertake an issuance of New Securities, calculated on it shall give the Investor written notice of its intention, describing the type of New Securities, the price and the general terms and conditions upon which the Company proposes to issue the New Securities (the "Issuance Notice"). The Investor shall have fifteen (15) business days from the date of receipt of the Issuance Notice (the "Exercise Period") to agree to purchase all or a fully diluted, as converted basis. Such election shall be made portion of the Investor's Preemptive Share of such New Securities for the price and upon the general terms specified in the Issuance Notice by delivering giving written notice to the Company Company, which notice shall state the quantity of such election New Securities to be purchased by the Investor (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion"Preemptive Notice"). A Preemptive Rights Offeree who fails to give such Notice of Election The Company shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days 90 after the expiration of such ten the Exercise Period (10the "Offering Period") day periodto sell the New Securities which are not purchased pursuant to the Preemptive Notice (the "Remaining New Securities") at a price and upon general terms no more favorable to the purchasers thereof than specified in the Issuance Notice. In the event the Company has not sold the Remaining New Securities within the Offering Period, it the Company shall be required to again comply not thereafter issue or sell any New Securities without first complying with this Section 3 prior to effectuating any such sale5(d). For purposes of this Section 35(d), “"New Securities” " shall mean any shares of capital stock equity securities of the Company whether or not now authorized and all any securities that are convertible into capital stock; providedconvertible, however, that New Securities shall not include shares exchangeable or exercisable for any equity security of capital stock or convertible securities: the Company other than (i) issued upon the exercise of any convertible securities; Excluded Securities, or (ii) securities issuable upon the exercise, conversion or exchange of derivative securities which were originally issued as New Securities in accordance with Section 5(d). The Investor's rights under this Section 5(d) shall terminate upon the completion of equity financings which result in the Company having received a total of at least twenty million dollars ($20,000,000) in the aggregate since its inception (the "Preemptive Threshold Amount") and shall not apply to any equity issued in connection with payment-in-kind interest; any financing in excess of the Preemptive Threshold Amount (iii) issued regardless of whether the Preemptive Threshold Amount is exceeded in connection with dividends payable the equity financing in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to which the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesPreemptive Threshold Amount is reached).
Appears in 1 contract
Samples: Subscription Agreement (Across America Financial Services, Inc.)
Preemptive Rights. In the event that the Company proposes (a) If at any time from time to issue or sell any New Securities time (as defined belowi) to Apollo LP ACRA 2 HoldCo or any of its Affiliates Subsidiaries, or (other than GNC LLCii) any time after the formation of a New ACRA 2 Investment Entity, such New ACRA 2 Investment Entity or any of its Subsidiaries ((i) and (ii), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights OffereeOfferor”) of such proposed issuance of New Securities. The ), proposes to offer New Securities Notice shall describe to any Person after the proposed issuance date hereof (or, in the case of a New Securities (including ACRA 2 Investment Entity, after the amount and price of date such New SecuritiesACRA 2 Investment Entity executes its Joinder Agreement), identify the proposed purchaser(s)Preemptive Offeror, and contain as applicable, shall, prior to such offer, deliver to all Shareholders of the applicable ACRA 2 Investment Entity an offer (the “Preemptive Rights Offer”) for such Shareholders that are able to sell certify to the Preemptive Offeror, as the case may be, that they are “accredited investors” (as such term is defined in Rule 501 pursuant to the Securities Act) (the “Eligible Shareholders”), to purchase that number of New Securities in connection with such proposed offering of New Securities, so that each such Shareholder would, in the aggregate, after the issuance or sale of all of such New Securities in connection with the proposed offering, hold the same Pro Rata Amount of shares of the applicable Preemptive Rights OffereeOfferor as was held by such Shareholder prior to such issuance and sale (or, in regard to the issuance and sale by a Subsidiary of a Preemptive Offeror, its Pro Rata Amount of such New Securities). Such issue shall be at the same price and for the same consideration New Securities issued to each such Shareholder shall have no less favorable terms and conditions as are applicable to the New Securities received by all other purchasers of such New Securities. The Preemptive Offer shall state (A) that the applicable Preemptive Offeror proposes to issue New Securities, (B) the amount of New Securities to be paid by issued, (C) the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion terms of the New Securities. Following receipt , (D) the purchase price of such noticethe New Securities, each Preemptive Rights Offeree shall have ten (10E) days during which it may elect to purchase a pro rata the portion of the New Securities determined by dividing the number of shares of Common Stock held available for purchase by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock Shareholder and (F) any other material terms of the Company outstanding immediately prior to the proposed issuance issuance. The Preemptive Offer shall remain open and irrevocable for a period of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election fifteen (15) business days (the “Notice of ElectionPreemptive Period”) specifying from the number date of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesdelivery.
Appears in 1 contract
Samples: Investment Entities Shareholders Agreement (Athene Holding LTD)
Preemptive Rights. In From and after the event that date hereof and until the date on which the Company proposes completes an Initial Public Offering (the "Termination Date"), SCF shall have a preemptive right to issue purchase its proportionate share of any additional shares of Capital Stock issued by the Company (other than (a) shares issued pursuant to plans for the benefit of employees, consultants, or sell any New Securities (as defined below) to Apollo LP directors of the Company or any of its Affiliates subsidiaries (other b) shares issued pursuant to warrants to purchase Common Stock outstanding on the date hereof and (c) shares issued otherwise than GNC LLCfor cash), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for on the same consideration terms as the shares to be paid sold by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New SecuritiesCompany. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing In determining the number of shares SCF shall have a right to purchase in any issuance of Common shares by the Company, the number of shares outstanding shall be determined on a fully diluted basis and the number of shares SCF shall be entitled to purchase shall be calculated by multiplying the total number of shares of Capital Stock held to be issued in such issuance by such Preemptive Rights Offeree by a fraction the numerator of which shall be the aggregate number of shares of Common Stock of the Company outstanding immediately prior then owned by SCF that were acquired pursuant to the proposed issuance Subscription Agreement or this Section 2 and the denominator of New Securities, calculated on a fully diluted, as converted basis. Such election which shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of total shares of Common Stock that it elects then outstanding or issuable pursuant to purchase then outstanding options, warrants and convertible securities. The Company shall notify SCF in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 writing at least 10 Business Days prior to effectuating any such sale. For purposes the issuance of this Section 3, “New Securities” shall mean any shares of capital stock Capital Stock that is to occur prior to the Termination Date. The Company may sell to others the securities offered to SCF but not subscribed by SCF within 10 Business Days after the receipt of such offer, during a period not to exceed 60 Business Days after the receipt by SCF of such offer. Thereafter, any issuance by the Company must again be preceded by an offer to SCF. SCF shall be entitled to delay the purchase of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant for which it has subscribed for up to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securities15 Business Days.
Appears in 1 contract
Samples: Stockholders Agreement (Hornbeck Offshore Services Inc /La)
Preemptive Rights. In Except for issuances of Common Stock upon exercise of any Shareholder Warrants or any Common Options or upon conversion of the event that Preferred Stock or Senior Preferred Stock, if the Company proposes to issue or sell issues any New Securities (as defined below) to Apollo LP equity securities or any of its Affiliates securities containing options or rights to acquire any equity securities or any securities convertible or exchangeable for equity securities in each case, after the date hereof to any Person (other than GNC LLCthe Executives or, the issuance of the Farallon Warrant and the Rosewood Warrant) (the "OFFEREE"), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an Company will offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights OffereeShareholder, a number of such securities ("OFFERED SHARES") so that the Ownership Ratio immediately after the issuance of such securities for each Shareholder would be equal to the Ownership Ratio for such Shareholder immediately prior to such issuance of securities; PROVIDED, that if the antidilution provisions set forth in Section 12 of any Warrant Document adjust the terms of such Warrant Document as a result of such issuance, the Company shall not be required to offer the applicable Warrant Holder the Offered Shares with respect to the Shareholder Shares attributable to the applicable Shareholder Warrant. The Company shall give each Shareholder at least 30 days prior written notice of any proposed issuance, which notice shall disclose in reasonable detail the proposed terms and conditions of such issuance (the "ISSUANCE NOTICE"). Each Shareholder will be entitled to purchase such securities at the same price and for price, on the same consideration terms, and at the same time as the securities are issued to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number delivery of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election within 15 days after delivery of the Issuance Notice (the “Notice "ELECTION NOTICE"); PROVIDED, that if more than one type of Election”) specifying security was issued, each Shareholder shall, if it exercises its rights pursuant to this Section 6, purchase such securities in the number same ratio as issued. If any of shares of Common Stock that it elects the Shareholders have elected to purchase any Offered Shares, the sale of such shares shall be consummated as soon as practical (but in an amount up toany event within 10 days) after the delivery of the Election Notice. In the event any Shareholder elects not to exercise its rights pursuant to this Section 6, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election no other Shareholder shall have the right to purchase the securities offered to such Shareholder. This Section 6 will terminate automatically, and be of no further pre-emptive force and effect, upon the consummation of a Initial Public Offering. The parties hereto that were party to the Original Shareholders Agreement hereby waive any and all rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this parties were entitled under Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock 6 of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection Original Shareholders Agreement with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant respect to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesthe Shareholder Warrants on the date hereof.
Appears in 1 contract
Samples: Shareholders Agreement (Town Sports International Inc)
Preemptive Rights. The Company grants to each Stockholder, for as long as the Stockholder holds at least one (1) Share of Common Stock, the preemptive right to purchase its Proportionate Percentage of all or any part of New Securities that the Company may from time to time after the date hereof propose to sell and issue. In the event any such Stockholder does not wish to purchase its Proportionate Percentage of any such New Securities, then any such Stockholder who so elects shall have the right to purchase, in proportion with any other such Stockholders who so elect based on their respective Proportionate Percentages, any Proportionate Percentage not purchased by a declining Stockholder. If the Company proposes an issuance of New Securities, it shall give to each Stockholder holding at least one (1) Share of Common Stock written notice of its intention, describing the type and amount of New Securities, the price, and the general terms upon which the Company proposes to issue the same. Each such Stockholder shall have fifteen (15) days from the receipt of any such notice to agree to purchase up to its Proportionate Percentage or such higher number of such New Securities as it would be willing to purchase if any Stockholders do not exercise their right to purchase their respective Proportionate Percentage in full, for the price and upon the general terms specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. In the event that the Stockholders do not elect to purchase all of the New Securities through exercise of their respective preemptive rights within said fifteen (15) day period, the Company proposes shall have sixty (60) days thereafter to sell (or enter into an agreement pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within thirty (30) days from the date of said agreement) the New Securities respecting which Stockholders’ rights were not exercised, at a price and upon general terms no more favorable to the purchasers thereof than specified in the Company’s notice. In the event the Company has not sold such New Securities within that sixty (60) day period (or sold and issued New Securities in accordance with the foregoing within thirty (30) days from the date of said agreement), the Company shall not thereafter issue or sell any New Securities (as defined below) to Apollo LP or any of its Affiliates (other than GNC LLC)Securities, it shall, no later than ten (10) days prior without first offering such securities to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described Stockholders in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesmanner provided herein.
Appears in 1 contract
Preemptive Rights. In A Each Investor shall have the event right (the "PARTICIPATION RIGHT") to purchase its Pro Rata Amount of any New Securities that the Company may from time to time propose to sell and issue after the date hereof, 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 terms of this Section 2.4. B Whenever the Company proposes to issue or and sell any New Securities Securities, the Company shall give each Investor written notice (as defined belowa "NEW ISSUE NOTICE") to Apollo LP or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to describing the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance type and amount of New Securities (including proposed to be issued and the amount price and price of general terms upon which the Company proposes to issue such New Securities), identify specifying a proposed closing date at least forty-five (45) days after the proposed purchaser(s)date each Investor shall have received the New Issue Notice, and contain an offer specifying in each case the recipient's Pro Rata Amount as of the date of the New Issue Notice. C Each Investor may exercise its Participation Right with respect to any proposed New Securities by notice to the Company, given within thirty (30) days after the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at Investors shall have received the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of New Issue Notice describing the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect D If any Investor does not exercise its Participation Right with respect to purchase a pro rata portion of the any proposed New Securities determined by dividing within the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securitiesthirty-day period, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election then within three (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (903) days after the expiration of such ten (10) thirty-day period, it the Company shall notify each Investor who proposed to purchase not less than its Pro Rata Amount of such New Securities of the number of shares of 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 its Pro Rata Amount of the remaining New Securities (considering the Fully Diluted Securities held by all Investors who purchased less than their Pro Rata Amount of the New Securities not to be issued and outstanding for purposes of computing the Pro Rata Amount), exercisable by written notice delivered to the Company within five (5) days after receipt of the notice of the availability of the balance of the New Securities. Such Investors also may allocate the right to purchase the New Securities between or among them in any proportion they choose (provided that no Investor's Pro Rata Amount may be reduced without its consent) as reflected in a notice to the Company within such five-day period. E 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 sixty (60) days following the expiration of the last notice period specified in Section 2.4(d) above. F If the Company does not sell, or obtain binding agreements to purchase, all of the proposed issue not committed to be purchased by Investors within the period specified in Section 2.4(e), the Company may, but shall not be obligated to, sell any of such New Securities. G The sale of any New Securities to Investors pursuant to this Section 2.4 shall be required to again comply with this Section 3 prior to effectuating closed on the same terms, at the same place as, and simultaneously with, the sale of any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities to any other purchasers (provided that the closing shall not include shares take place earlier than the proposed closing date specified in the applicable New Issue Notice without the consent of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesall participating Investors).
Appears in 1 contract
Preemptive Rights. In From time to time after the event that date hereof, the Company may issue additional shares of its capital stock (including Common Stock) or warrants or options exercisable, or securities convertible, into such capital stock (collectively, “Additional Stock”). Subject to the last Section of this Section 7, if the Company proposes to issue or sell Additional Stock to any New Securities (as defined below) Person, Holder shall have the right from and after the date hereof and until the expiration of the Exercise Period, to Apollo LP or any purchase up to such number of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior shares of the Additional Stock that bears the same ratio to the consummation total number of shares of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing Additional Stock as the number of shares of Common Stock held then owned by such Preemptive Rights Offeree by Holder (as determined on a Fully-Diluted Basis) bears to the aggregate number of shares of Common Stock (as determined on a Fully-Diluted Basis), upon the same price and terms of the Additional Stock proposed to be issued. The Company shall give written notice to Holder at least twenty (20) days prior to the issuance of such Additional Stock specifying in reasonable detail the reason for the proposed issuance, the terms thereof and the identity of the proposed purchaser, if any. If Holder intends to purchase a portion of the Additional Stock, such Holder shall (within fifteen (15) days following such written notice from the Company) deliver written notice of such intention to the Company. The failure of Holder to give such a notice within such time period of its intention to purchase Additional Stock shall be deemed to be a waiver of Holder’s right to purchase such Additional Stock. The closing of the purchase of such Additional Stock shall be held at such time and place as the Company shall determine, but in any event not later than fifteen (15) days following the last date in which Holder shall have given notice of its intention to exercise its rights under this Section 7. Notwithstanding the foregoing, Holder shall not have any such right to purchase Additional Stock if such Additional Stock is to be issued (i) to employees, officers or directors of the Company outstanding immediately prior to the proposed issuance extent approved by the Board, (ii) as payment of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made all or any part of the purchase price or merger consideration of any business or assets thereof acquired by delivering written notice to the Company or any of such election its Subsidiaries, (iii) to any lender in connection with the “Notice incurrence of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If Indebtedness by the Company does not effectuate such sale described in the New Securities Notice within ninety or any of its Subsidiaries, or (90iv) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; option or other right described in any of clauses (iii) issued in connection with payment-in-kind interest; through (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securities).
Appears in 1 contract
Samples: Clarion Technologies Inc/De/
Preemptive Rights. In the event that Except with respect to a registered public offering, if the Company proposes shall issue any Shares of Common Stock, rights, options, or warrants to issue purchase Shares of Common Stock, or sell securities of any type whatsoever that are, or may become, convertible into Shares of Common Stock (collectively, "New Securities (as defined below) Securities," which term shall exclude any Excluded Stock), the Holder of this Warrant shall be entitled to Apollo LP purchase its pro rata share of all or any of its Affiliates (other than GNC LLC), it shall, no later than ten (10) days prior to the consummation of such transaction, give notice in writing (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights Offeree”) of such proposed issuance of New Securities. The New Securities Notice shall describe the proposed issuance of New Securities (including the amount and price part of such New Securities), identify the proposed purchaser(s), and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights Offeree, at the same price and for the same consideration to be paid by the proposed purchaser(s), all or part of such Preemptive Rights Offeree’s pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined by dividing the number of shares of Common Stock held by such Preemptive Rights Offeree by the aggregate number of shares of Common Stock of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase provided in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale6. For purposes of this Section 36, “New Securities” the term "pro rata share" shall mean any shares of capital stock of such share as would be necessary to permit the Holder to maintain a percentage interest in the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon determined on a fully diluted basis assuming the exercise of any and all outstanding options or warrants and the conversion of any securities convertible securities; (iiinto Shares of Common Stock) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant equal to the exercise Holder's percentage interest in the Company immediately prior to such issuance of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; New Securities (vi) issued pursuant determined on a fully diluted basis). Except with respect to a mergerregistered public offering, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant in the event the Company proposes to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the undertake an issuance of debt securitiesNew Securities, it shall give the Holder written notice of its intention, describing the type of New Securities and the price and terms upon which the Company proposes to issue the same. The Holder shall have 30 days from the date of receipt of any such notice to agree to purchase up to its pro rata share of such New Securities for the price and upon the terms specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. In the event the Holder fails to exercise such right of purchase within said 30-day period, the Company shall have 90 days thereafter to complete the sale of the New Securities at the price and upon terms no more favorable to the purchasers of such New Securities than those specified in the Company's notice to the Holder. In the event the Company has not sold the New Securities within such 90-day period, the Company shall not thereafter issue or sell any of such New Securities without first complying with the terms of this Section 6.
Appears in 1 contract
Samples: Acr Group Inc
Preemptive Rights. In (a) If the event that the Company Corporation proposes to issue or sell any New Securities (as defined belowin this Section 5.1) to Apollo LP or any of its Affiliates (other than GNC LLC)after the date hereof, it shall, no later than ten (10) days prior to the consummation of such transaction, give notice Corporation shall notify in writing each Preferred Shareholder (the “New Securities Notice”) to each Institutional Co-Investor (each, a “Preemptive Rights OffereeRight Holder”) of such proposed issuance of New Securitiestransaction (the “Preemptive Right Notice”). The New Securities Preemptive Right Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities)or sale, identify the proposed purchaser(s), buyer and contain an offer (the “Preemptive Rights Offer”) to sell to each Preemptive Rights OffereeRight Holder, at the same price and for the same consideration (subject to the last sentence of this paragraph) to be paid by the proposed purchaser(s)buyer, all or part of such Preemptive Rights Offeree’s pro rata portion additional New Securities of the New Securities. Following receipt same class and type being offered to the proposed buyer in an amount equal to the product obtained by multiplying (i) the number of such notice, each Preemptive Rights Offeree shall have ten (10) days during which it may elect to purchase a pro rata portion of the New Securities determined being offered to the proposed buyer by dividing (ii) a fraction, (x) the numerator of which is the number of shares of Preferred Stock and Conversion Common Stock Shares held by such Preemptive Rights Offeree by Right Holder (calculated on a Fully-Diluted Basis) and (y) the aggregate denominator of which is the total number of shares of Preferred Stock and Conversion Common Stock of Shares then outstanding (on a Fully-Diluted Basis). If the Company outstanding immediately prior purchase price for the New Securities to be paid by the proposed issuance buyer is in some form other than cash, then a Preemptive Right Holder may pay for the additional New Securities it is entitled to purchase hereunder in cash (with the fair market value of any non-cash consideration to be paid by such buyer to be determined in good faith by the Board). A Preemptive Right Holder shall have 15 days from the receipt of a Preemptive Right Notice to accept the offer contained in such Preemptive Right Notice, and any purchase of New Securities, calculated on Securities by a fully diluted, as converted basis. Such election Preemptive Right Holder shall be made by delivering written notice to the Company within 30 days of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give such Notice of Election shall have no further pre-emptive rights to which the New Securities Notice is related. If the Company does not effectuate such sale described in the New Securities Notice within ninety (90) days after the expiration of such ten (10) day period, it shall be required to again comply with this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock receipt of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved Preemptive Right Notice by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiessuch Preemptive Right Holder.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Xstream Systems Inc)
Preemptive Rights. (a) In the event that case the Company proposes at any time to issue or sell any New Securities shares of equity securities of the Company (as defined belowor securities convertible or exchangeable for equity securities of the Company) to Apollo LP or any of its Affiliates issued by the Company after the date hereof (other than GNC LLCcollectively, the "Company Offered Securities"), it the Company shall, no later than ten twenty (1020) days prior to the consummation of such transactiontransaction (a "Preemptive Rights Transaction"), give notice in writing (the “New Securities "Preemptive Rights Offer Notice”") to each Institutional Co-Investor (eachWilliams, a “the Other Stockholders and their respective Permitted Transfxxxxx xx such Preemptive Rights Offeree”) of such proposed issuance of New SecuritiesTransaction. The New Securities Preemptive Rights Offer Notice shall describe the proposed issuance of New Securities (including the amount and price of such New Securities)Preemptive Rights Transaction, identify the proposed purchaser(s)purchaser or purchasers, and contain an offer (the “"Preemptive Rights Offer”") to sell to each Preemptive Rights OffereeWilliams, at the Other Stockholders and their respective Permitted Transfxxxxx, xt the same price and for the same consideration to be paid by the proposed purchaser(spurchaser (provided, that, in the event any of such consideration is non-cash consideration, at the election of Williams, the Other Stockholders or their respective Permitted Transfexxxx xx whom the Preemptive Rights Offer is made, Williams, the Other Stockholders and their respective Permitted Transfxxxxx xxy pay cash equal to the value of such non-cash consideration), all or any part of such Preemptive Rights Offeree’s Williams', the Other Stockholders' and their respective Permitted Tranxxxxxxx' pro rata portion of the New Securities. Following receipt of such notice, each Preemptive Rights Offeree Company Offered Securities (which shall have ten (10) days during which it may elect to purchase be a pro rata portion fraction of the New Company Offered Securities determined by dividing the number of shares of Common outstanding Voting Stock held owned by Williams, the Other Stockholders or such of their Permitted Transfereex, xx xxe case may be, by the total number of outstanding shares of Voting Stock). If Williams, the Other Stockholders or their respective Permitted Transfexxxx xx whom a Preemptive Rights Offeree Offer is made fail to accept (each a "Non-Responding Holder") in writing the Preemptive Rights Offer by the aggregate number of shares of Common Stock fifteenth (15th) day after the Company's delivery of the Company outstanding immediately prior to the proposed issuance of New Securities, calculated on a fully diluted, as converted basis. Such election shall be made by delivering written notice to the Company of such election (the “Notice of Election”) specifying the number of shares of Common Stock that it elects to purchase in an amount up to, but not exceeding, its pro rata portion. A Preemptive Rights Offeree who fails to give Offer Notice, such Notice of Election Non-Responding Holders shall have no further pre-emptive rights with respect to which the New Securities Notice is related. If proposed Preemptive Rights Transaction and the Company does not effectuate such sale described in may proceed with the New Securities Notice within ninety (90) days after proposed Preemptive Rights Transaction, free of any right on the expiration part of such ten (10) day periodNon-Responding Holders, it shall be required to again comply with as the case may be, under this Section 3 prior to effectuating any such sale. For purposes of this Section 3, “New Securities” shall mean any shares of capital stock of the Company and all securities that are convertible into capital stock; provided, however, that New Securities shall not include shares of capital stock or convertible securities: (i) issued upon the exercise of any convertible securities; (ii) issued 6 in connection with payment-in-kind interest; (iii) issued in connection with dividends payable in kind, if and when declared; (iv) issued in connection with a stock split or recapitalization; (v) granted or issued pursuant to the exercise of options or other stock-based incentive awards granted to consultants, advisors, employees, officers or directors pursuant to plans approved by the Board of Directors; (vi) issued pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (vii) issued pursuant to a registration statement filed under the Securities Act; or (viii) issued in connection with borrowing or the issuance of debt securitiesrespect thereof.
Appears in 1 contract
