Common use of Participation Right Clause in Contracts

Participation Right. If the Company sells any shares of a series of Preferred Stock and/or rights, options, or warrants to purchase shares of Common Stock or of a series of Preferred Stock, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for shares of a series of Common Stock or Preferred Stock (“Qualifying New Securities”); provided that notwithstanding anything to the contrary any equity, options, warrant or similar equity-linked issuances to employees, consultants or vendors of the Company shall be excluded and not be deemed to be a Qualifying New Securities herein, the Company shall give notice to the Purchasers within 30 days after the issuance of Qualifying New Securities. Such notice shall describe the type, price, and terms of the Qualifying New Securities. Each Purchaser shall have 20 days from the date notice is given to elect to purchase up to the number of Qualifying New Securities which equals the greater of (x) that number of Qualifying New Securities having an aggregate purchase price equal to 400% of the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants pursuant to this Agreement, or (y) the proportion that the Common Stock then held by such Purchaser (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of any shares of preferred stock of the Company and any other securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and other Derivative Securities). The closing of such sale shall occur within 45 days of the date notice is given to the Purchasers. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined in the certificate of Designation) thereof, shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 19.99% of the number of shares of Common Stock outstanding immediately after giving effect to such purchase Qualifying New Securities. 7.2

Appears in 2 contracts

Samples: Securities Purchase Agreement (Canoo Inc.), Securities Purchase Agreement (Canoo Inc.)

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Participation Right. If Following the Company sells any shares of a series of Preferred Stock and/or rights, options, or warrants to purchase shares of Common Stock or of a series of Preferred Stock, or securities earliest occurrence of any type whatsoever that areIssuance, if the Purchaser proposes to effect the Purchaser Qualified IPO or may becomeAlipay proposes to effect the Alipay Qualified IPO, convertible the Purchaser or exchangeable into or exercisable for shares Alipay, as applicable, shall give the Seller written notice of its intent to do so as soon as reasonably practicable, at a series time leaving the Seller a reasonable opportunity to comply with any applicable Law in connection with its exercise of Common Stock or Preferred Stock the right described in this Section 9.8(b), and in any event not less than thirty (“Qualifying New Securities”); provided that notwithstanding anything 30) Business Days prior to the contrary any equity, options, warrant contemplated publication or similar equity-linked issuances to employees, consultants or vendors public filing of the Company shall be excluded and not be deemed to be a Qualifying New Securities hereinprospectus for such offering. Within fifteen (15) Business Days following the delivery of such notice, the Company shall give Seller may, at the sole discretion of the Alibaba Independent Committee, by notice to the Purchasers within 30 days after the issuance Purchaser or Alipay, as applicable, irrevocably commit to sell a number of Qualifying New Securities. Such notice shall describe the type, price, and terms equity interests of the Qualifying New Securities. Each Purchaser shall have 20 days from the date notice is given to elect to purchase or Alipay up to the number of Qualifying New Securities which equals equity interests the greater of (x) that number of Qualifying New Securities having an aggregate purchase price equal to 400% of Seller and its Subsidiaries own directly in the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants pursuant to this Agreement, or (y) the proportion that the Common Stock then held by such Purchaser (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exerciseAlipay, as applicable, of any shares of preferred stock of and the Company and any other securities Purchaser or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exerciseAlipay, as applicable, shall include in the Purchaser Qualified IPO or the Alipay Qualified IPO, as applicable, such number of all Preferred Stock and other Derivative Securities). The closing equity interests as specified in such notice; provided, that if the managing underwriter of such sale Purchaser Qualified IPO or Alipay Qualified IPO, as applicable, in good faith shall occur within 45 days of have advised the date notice is given to Purchaser or Alipay, as applicable, that, in its opinion, the Purchasers. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined inclusion in the certificate of Designation) thereof, shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 19.99% offering of the number of shares equity interests committed to be sold by the Seller in accordance with this Section 9.8(b) would adversely affect the price or success of Common Stock outstanding immediately after giving the offering, the Purchaser or Alipay, as applicable, shall include in the offering only such number of equity interests as the Purchaser or Alipay, as applicable, is advised can be sold in such offering without such an effect provided that any reduction in equity interests to be included in the offering shall be effected in the following order of priority: (i) first, equity interests that the Purchaser or Alipay, as applicable, proposes to offer for its own account; (ii) second, equity interests that the Seller and its Subsidiaries have committed to sell in the offering; and (iii) third, any equity interests that other equityholders have requested to be sold in such purchase Qualifying New Securities. 7.2offering.

Appears in 2 contracts

Samples: Share and Asset Purchase Agreement (Yahoo Inc), Share and Asset Purchase Agreement (Alibaba Group Holding LTD)

Participation Right. If Following the Company sells any shares of a series of Preferred Stock and/or rights, options, or warrants to purchase shares of Common Stock or of a series of Preferred Stock, or securities earliest occurrence of any type whatsoever that areIssuance, or may becomeif JD Finance proposes to effect the Qualified IPO, convertible or exchangeable into or exercisable for shares JD Finance shall give JD Group written notice of its intent to do so as soon as reasonably practicable, at a series time leaving JD Group a reasonable opportunity to comply with any applicable Laws in connection with its exercise of Common Stock or Preferred Stock the right described in this Section 10.6(b) , and in any event not less than thirty (“Qualifying New Securities”); provided that notwithstanding anything 30) Business Days prior to the contrary any equity, options, warrant contemplated publication or similar equity-linked issuances to employees, consultants or vendors public filing of the Company shall be excluded prospectus for such offering. Within fifteen (15) Business Days following the delivery of such notice and not be deemed subject to be a Qualifying New Securities hereinapplicable Law, JD Group may, at the Company shall give sole discretion of the JD Group Audit Committee, by notice to the Purchasers within 30 days after the issuance JD Finance, irrevocably commit to sell a number of Qualifying New Securities. Such notice shall describe the type, price, and terms equity interests of the Qualifying New Securities. Each Purchaser shall have 20 days from the date notice is given to elect to purchase JD Finance up to the number of Qualifying New Securities which equals equity interests JD Group and its Subsidiaries own directly in JD Finance, and JD Finance shall include in the greater of (x) that Qualified IPO such number of Qualifying New Securities having an aggregate purchase price equal to 400% of equity interests as specified in such notice; provided , that if the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants pursuant to this Agreement, or (y) the proportion that the Common Stock then held by such Purchaser (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of any shares of preferred stock of the Company and any other securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and other Derivative Securities). The closing managing underwriter of such sale Qualified IPO in good faith shall occur within 45 days of have advised JD Finance that, in its opinion, the date notice is given to the Purchasers. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined inclusion in the certificate of Designation) thereof, shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 19.99% offering of the number of shares equity interests committed to be sold by JD Group in accordance with this Section 10.6(b) would adversely affect the price or success of Common Stock outstanding immediately after giving the offering, JD Finance shall include in the offering only such number of equity interests as JD Finance is advised can be sold in such offering without such an effect provided that any reduction in equity interests to be included in the offering shall be effected in the following order of priority: (i) first, equity interests that the JD Finance proposes to offer for its own account; (ii) second, equity interests that JD Group and its Subsidiaries have committed to sell in the offering; and (iii) third, any equity interests that other equityholders have requested to be sold in such purchase Qualifying New Securities. 7.2offering.

Appears in 1 contract

Samples: Framework Agreement (JD.com, Inc.)

Participation Right. (a) If the Company sells issues any shares of Common Shares or Subject Securities other than pursuant to an Exempt Issuance (any such issuance, a series of Preferred Stock and/or rights"Subsequent Offering"), options, or warrants to purchase shares of Common Stock or of a series of Preferred Stock, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for shares of a series of Common Stock or Preferred Stock (“Qualifying New Securities”); provided that notwithstanding anything to the contrary any equity, options, warrant or similar equity-linked issuances to employees, consultants or vendors of then the Company shall be excluded and not be deemed promptly, and, in any event within three Business Days following the public announcement of such Subsequent Offering, provide a written notice (the "Subsequent Offering Notice") to the Investor setting out: (i) the number of Common Shares or Subject Securities issued or contemplated to be a Qualifying New issued in connection with the Subsequent Offering at the time and the total number of Common Shares and Subject Securities hereinissued and outstanding as of the close of business on the Business Day immediately preceding the Subsequent Offering Notice; (ii) the material terms and conditions of any Subject Securities issued or contemplated to be issued in connection with the Subsequent Offering at the time, including any term sheets or offer sheets, if any; (iii) to the extent known, the Company shall give notice subscription price per Common Share or Subject Security issued or to be issued in connection with the Purchasers within 30 days after Subsequent Offering; and (iv) the proposed closing date for the issuance of Qualifying New Securities. Such notice Common Shares or Subject Securities to the Investor, assuming the Investor exercises its Participation Rights, which closing date shall describe be the type, price, and terms later of (A) 10 days following the date of the Qualifying New Securities. Each Purchaser shall have 20 days from Subsequent Offering Notice, (B) the closing date notice set for the Subsequent Offering, (C) if shareholder approval is given required under Applicable Laws for the Company to elect to purchase up complete the issuance of Common Shares or Subject Securities to the number of Qualifying New Securities which equals the greater of (x) that number of Qualifying New Securities having an aggregate purchase price equal to 400% of the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants Investor pursuant to this Agreementits exercise of its Participation Rights, the Business Day following receipt of such shareholder approval, or (yD) the proportion that the Common Stock then held by such Purchaser (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, other date as applicable, of any shares of preferred stock of the Company and any other securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and other Derivative Securities). The closing of such sale shall occur within 45 days of the date notice is given to the Purchasers. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined in the certificate of Designation) thereof, shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 19.99% of the number of shares of Common Stock outstanding immediately after giving effect to such purchase Qualifying New Securities. 7.2Investor may agree.

Appears in 1 contract

Samples: Governance and Investor Rights Agreement (Contact Gold Corp.)

Participation Right. If In the Company sells any shares of event a series of Preferred Stock and/or rights, options, registration demand is made pursuant to Section 2(b)(i) or warrants to purchase shares of Common Stock or of a series of Preferred Stock, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for shares of a series of Common Stock or Preferred Stock (“Qualifying New Securities”); provided that notwithstanding anything to the contrary any equity, options, warrant or similar equity-linked issuances to employees, consultants or vendors of the Company shall be excluded and not be deemed to be a Qualifying New Securities hereinSection 2(b)(ii) above, the Company shall give promptly, but in any event no later than two (2) Business Days following the 2011 Demand Date send a written notice to the Purchasers within 30 days after the issuance of Qualifying New Securities. Such notice shall describe the type, price, and terms each of the Qualifying New SecuritiesHolders of 2011 Registrable Securities indicating that such registration demand has been made and in reasonable detail any material information relating to the desired offering known to the Company at such time. Each Purchaser Holder of 2011 Registrable Securities shall have 20 days ten (10) Business Days from the date its receipt of such notice is given to elect to purchase up deliver to the number Company a written request specifying the amount of Qualifying New Registrable Securities that such Holder intends to sell and such Holder’s intended method of distribution. Upon receipt of such request, the Company shall use its best efforts to cause all Registrable Securities which equals the greater of (x) that number of Qualifying New Securities having an aggregate purchase price equal to 400% of the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants pursuant to this Agreement, or (y) the proportion that the Common Stock then held by such Purchaser (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of any shares of preferred stock of the Company and any other securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears has been requested to register to be registered under the Securities Act to the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and extent necessary to permit their sale or other Derivative Securities). The closing of such sale shall occur within 45 days of the date notice is given to the Purchasers. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined in the certificate of Designation) thereof, shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined disposition in accordance with Section 13(d) the intended methods of distribution specified in the request of such Holder. If, in connection with any underwritten public offering for the account of the Exchange Act and Holders of 2011 Registrable Securities, the rules promulgated thereundermanaging underwriter(s) thereof shall impose in excess of 19.99% of writing a limitation on the number of shares of Common Stock outstanding immediately after giving effect which may be included in a registration statement because, in the good faith judgment of such underwriter(s), marketing or other factors dictate such limitation is necessary to facilitate such purchase Qualifying New offering, then the Company shall be obligated to include in the registration statement only such limited portion of the Registrable Securities with respect to which each Holder has requested inclusion hereunder as such underwriter(s) shall permit. Any exclusion of Registrable Securities shall be made first, to the 2011 Registrable Securities pro rata amongst the Holders thereof seeking to include 2011 Registrable Securities in such registration statement, in proportion to the number of 2011 Registrable Securities sought to be included by such Holders of 2011 Registrable Securities and second, to the 2013 Registrable Securities pro rata amongst the Holders thereof seeking to include 2013 Registrable Securities in such registration statement, in proportion to the number of 2013 Registrable Securities sought to be included by such Holders of 2013 Registrable Securities. 7.2; provided, however, that the Company shall not exclude any Registrable Securities unless the Company has first excluded all securities sought to be offered on account of the Company and any non-Registrable Securities.

Appears in 1 contract

Samples: Registration Rights Agreement (Champions Oncology, Inc.)

Participation Right. If Subject to the Company sells any terms and conditions specified in this Section 5, until the third anniversary of the Issuance Date, the holders of shares of a series of Preferred Stock and/or rightsshall have a right to participate with respect to the issuance or possible issuance of any equity or equity-linked securities or debt which is convertible into equity or in which there is an equity component, optionsincluding, or warrants to purchase shares of Common Stock or of a series but not limited to, any additional issuance of Preferred Stock, or securities of any type whatsoever that are(as the case may be, or may become"Additional Shares"), convertible or exchangeable into or exercisable for shares of a series of Common Stock or Preferred Stock (“Qualifying New Securities”); provided that notwithstanding anything on the same terms and conditions as offered by the Company to the contrary any equity, options, warrant or similar equity-linked issuances to employees, consultants or vendors other purchasers of such Additional Shares. Each time the Company shall be excluded and not be deemed proposes to be a Qualifying New Securities hereinoffer any Additional Shares, the Company shall give make an offering of such Additional Shares to each holder of shares of Preferred Stock in accordance with the following provisions: The Company shall deliver a notice (the "Issuance Notice") to the Purchasers holders of shares of Preferred Stock stating (a) its bona fide intention to offer such Additional Shares, (b) the number of such Additional Shares to be offered, (c) the price and terms, if any, upon which it proposes to offer such Additional Shares, and (d) the anticipated closing date of the sale of such Additional Shares. By written notification received by the Company, within 30 20 business days after the issuance of Qualifying New Securities. Such notice shall describe the type, price, and terms giving of the Qualifying New Securities. Each Purchaser shall have 20 days from the date notice is given to Issuance Notice, any holder of shares of Preferred Stock may elect to purchase or obtain, at the price and on the terms specified in the Issuance Notice (provided that if the price is to be paid in whole or in part in consideration other than cash, the holders of Preferred Stock exercising their rights hereunder shall have the option to pay such consideration in cash equal to the fair market value of such non-cash consideration (valued in accordance with the method set forth in Article XI.D(ii)(f) of the Certificate of Designation, up to the that number of Qualifying New Securities such Additional Shares which equals such holder's Pro Rata Amount (as defined below). The "Pro Rata Amount" for any given holder of shares of Preferred Stock shall equal that portion of the Additional Shares that the Company proposes to offer which equals the greater of (x) that number of Qualifying New Securities having an aggregate purchase price equal to 400% of the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants pursuant to this Agreement, or (y) the proportion that the Common Stock then held by such Purchaser (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of any shares of preferred stock of the Company and any other securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and other Derivative Securities). The closing of such sale shall occur within 45 days of the date notice is given to the Purchasers. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined in the certificate of Designation) thereof, shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 19.99% of the number of shares of Common Stock outstanding immediately after that such holder owns or has the right to acquire (without giving effect to the limitations contained in Article IV.D of the Certificate of Designation) bears to the total number of shares of Common Stock then outstanding (assuming in each case the full conversion, exercise or exchange of all Convertible Securities and Purchase Rights then outstanding); provided, however, that in the event that any such holder exercises its right to pay the consideration for the Additional Shares purchasable hereunder with shares of Preferred Stock increased (but not decreased) to the extent necessary to equal (x) such number of shares of Common Stock (if the Additional Shares being issued are Common Stock) or (y) that number of Additional Shares as are convertible into or exercisable or exchangeable for such number of shares of Common Stock (if the Additional Shares being issued are Convertible Securities or Purchase Rights), as is obtained by dividing (a) the Redemption Amount attributable to such holder's shares of Preferred Stock being redeemed by (b)(i) the price per share at which such Common Stock is being issued (if the Additional Shares being issued are Common Stock) or (ii) the conversion, exercise or exchange price at which such Additional Shares are convertible into or exercisable or exchangeable for shares of Common Stock (if the Additional Shares being issued are Convertible Securities or Purchase Rights), and in such event the Company shall be obligated to sell such number of Additional Shares to each such holder, even if the aggregate Pro Rata Amount for all such holders exceeds the aggregate amount of Additional Shares that the Company had initially proposed to offer. The Company shall promptly, in writing, inform each holder of shares of Preferred Stock which elects to purchase Qualifying New Securitiesall of the Additional Shares available to it ("Fully-Exercising Holder") of any other holder's failure to do likewise. 7.2During the five-day period commencing after such information is given, each Fully-Exercising Holder shall be entitled to obtain that portion of the Additional Shares for which the holders of shares of Preferred Stock were entitled to subscribe but which were not so subscribed for by such holders which is equal to the proportion that the number of shares of Preferred Stock held by such Fully-Exercising Holder bears to the total number of shares of Preferred Stock held by all Fully-Exercising Holders who wish to purchase any of the unsubscribed shares. If all Additional Shares which the holders of shares of Preferred Stock are entitled to obtain pursuant to subparagraph (ii) of this Section 5 are not elected to be obtained as provided in such subparagraph, the Company may, during the 75-day period following the expiration of the period provided in such subparagraph, offer the remaining unsubscribed portion of such Additional Shares to any person or persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Issuance Notice. If the Company does not consummate the sale of such Additional Shares within such period, the right provided hereunder shall be deemed to be revived and such Additional Shares shall not be offered or sold unless first reoffered to the holders of shares of Preferred Stock in accordance herewith. The participation right set forth in this Section 5 may not be assigned or transferred, except that such right is assignable by each holder of shares of Preferred Stock to any wholly-owned subsidiary or parent of, or to any corporation or entity that is, within the meaning of the Securities Act of 1933, as amended, controlling, controlled by or under common control with, any such holder. The purchase right granted by this Section 5 shall not apply to: (i) the grant or exercise of any stock, options or warrants which may hereafter be granted or exercised under any equity incentive plan of the Company now existing or to be implemented in the future which is approved in good faith by the Board of Directors of the Company or a committee of non-employee directors established for such purpose; (ii) the conversion of the Series D Preferred Stock or the exercise of the Warrants; (iii) the issuance of securities in connection with a bona fide business acquisition; (iv) the issuance of stock, warrants or other securities or rights to persons or entities in connection with commercial lease lines or bank financing provided that such issuances are primarily for purposes other than equity financing; or (v) the issuance of securities in connection with strategic transactions involving the Company and other entities, including joint ventures, manufacturing, marketing or distribution arrangements (but excluding any sale of substantially all of the Company's assets or any merger or consolidation of the Corporation into or with another entity in which the holders of the capital stock of the Company immediately prior to such merger or consolidation do not hold at least fifty percent (50%) in voting power of the surviving corporation).

Appears in 1 contract

Samples: Securities Purchase Agreement (Lifepoint Inc)

Participation Right. If For a period of one year from the Company sells date hereof (the “Participation Period”), the Investor shall have the right to participate in any shares subsequent offering (a “Subsequent Financing”) of a series of Preferred Common Stock and/or rightsor securities convertible into, optionsexercisable or exchangeable for, or warrants otherwise representing the right to purchase acquire shares of Common Stock or of a series of Preferred Stock, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for shares of a series of (“Common Stock or Preferred Stock (“Qualifying New SecuritiesEquivalents”); , other than an Excluded Issuance, as provided that notwithstanding anything herein. At least three Business Days prior to the contrary any equityexecution of definitive documentation for a Subsequent Financing, options, warrant or similar equity-linked issuances to employees, consultants or vendors of the Company shall deliver to the Investor a written notice (“Pre-Notice”), which Pre-Notice shall notify the Investor that the Company would like to share with the Investor certain information which may constitute material non-public information with regard to the Company and which shall ask the Investor if it wants to review such information. The Investor shall have the right, exercisable at any time within 24 hours after its receipt of the Pre-Notice, to notify the Company whether it wishes to review such information; provided, however that if such 24-hour period would include a period when the Investor is unable to respond due to a religious observance, then such 24-hour period shall be excluded deemed to have commenced upon the termination of such religious observance. Upon the written request of the Investor, and only upon a request by the Investor, the Company shall promptly, but in no event later than 12 hours after the receipt of such request, deliver a subsequent notice to the Investor (a “Subsequent Financing Notice”). The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, including a description of the material terms of any Common Stock Equivalents to be offered, and the expected amount of gross proceeds of such Subsequent Financing (the “Subsequent Financing Gross Proceeds”). The Investor shall notify the Company in writing within 24 hours after its receipt of the Subsequent Financing Notice of its willingness to participate in the Subsequent Financing on the terms described in the Subsequent Financing Notice, subject to completion of mutually acceptable documentation; provided, however that if such 24-hour period would include a period when the Investor is unable to respond due to a religious observance, then the 24-hour period shall be deemed to have commenced upon the termination of such religious observance. If the Investor fails to timely respond to a Pre-Notice or Subsequent Financing Notice, the Investor shall have no right to participate in the Subsequent Financing. In the event that the Investor timely notifies the Company that it wishes to participate in the Subsequent Financing, the Investor shall have the right to participate in the Subsequent Financing in an amount not to exceed the result obtained by multiplying its Pro Rata Portion (as defined below) by 30% of the Subsequent Financing Gross Proceeds. As used herein, “Pro Rata Portion” equals the ratio (expressed as a fraction) of (x) the aggregate purchase price of the Shares and Warrants purchased by the Investor pursuant to this Agreement (the “Subscription Amount”) and (y) the aggregate sum of all of the Subscription Amounts of all investors participating in the Offering (the “Participating Investors”). The Company shall have the right to sell any amount of the Subsequent Financing not purchased by the Investor and the Participating Investors to such investors as it may determine in its sole discretion; provided, however, that any such sales shall be on terms no more favorable to the investors than those described in the Subsequent Financing Notice. Notwithstanding the delivery of any Pre-Notice or Subsequent Financing Notice, the Company shall have the right to terminate or delay the Subsequent Financing as it may determine in its sole discretion. The Investor acknowledges and agrees that, upon its receipt of a Subsequent Financing Notice, the Investor shall be deemed to be in possession of material non-public information regarding the Company and agrees to hold such information in confidence and not to disclose such information to any other person and not to effect any transactions in the Common Stock until the earlier of (i) the public announcement of the Subsequent Financing or (ii) the receipt of written notice from the Company that it has abandoned the Subsequent Financing (which notice shall be given promptly following a Qualifying New Securities determination by the Company not to proceed with a Subsequent Financing). As used herein, the Company shall give notice to the Purchasers within 30 days after term “Excluded Issuance” means: (i) the issuance of Qualifying New Securities. Such notice shall describe the typeSecurities pursuant to the Offering, price, and terms including the issuance of the Qualifying New Securities. Each Purchaser shall have 20 days from the date notice is given to elect to purchase up to the number of Qualifying New Securities which equals the greater of (x) that number of Qualifying New Securities having an aggregate purchase price equal to 400% Warrant Shares upon due exercise of the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants pursuant to this Agreement, or Warrants; (yii) the proportion that the Common Stock then held by such Purchaser (including all shares issuance of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of any shares of preferred stock of the Company and any other securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears or other incentives to acquire Common Stock, pursuant to the total Company’s employee benefit plans, qualified stock option plans or other employee compensation plans, in each case as adopted or approved by the Company’s Board of Directors; (iii) the issuance of Common Stock pursuant to the valid exercises of options, warrants or rights outstanding on the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and other Derivative Securities). The closing date hereof; provided that the terms of such sale shall occur within 45 days of securities are not amended after the date notice is given hereof to the Purchasers. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined in the certificate of Designation) thereof, shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 19.99% of increase the number of shares of Common Stock outstanding immediately after giving effect issuable thereunder or to lower the exercise or conversion price thereof; and (iv) the issuance of Common Stock pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that any such purchase Qualifying New Securities. 7.2issuance shall only be to a entity which is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Company and in which the Company receives benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.

Appears in 1 contract

Samples: Nile Therapeutics, Inc.

Participation Right. If Following the Company sells Issuance Closing, if the Purchaser proposes to effect the Purchaser Qualified IPO or Alipay proposes to effect the Alipay Qualified IPO, the Purchaser or Alipay, as applicable, shall give the Seller written notice of its intent to do so as soon as reasonably practicable, at a time leaving the Seller a reasonable opportunity to comply with any shares applicable Law in connection with its exercise of a series of Preferred Stock and/or rightsthe right described in this Section 9.8(b), options, or warrants to purchase shares of Common Stock or of a series of Preferred Stock, or securities of and in any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for shares of a series of Common Stock or Preferred Stock event not less than thirty (“Qualifying New Securities”); provided that notwithstanding anything 30) Business Days prior to the contrary any equity, options, warrant contemplated publication or similar equity-linked issuances to employees, consultants or vendors public filing of the Company shall be excluded and not be deemed to be a Qualifying New Securities hereinprospectus for such offering. Within fifteen (15) Business Days following the delivery of such notice, the Company shall give Seller may, at the sole discretion of the Alibaba Independent Committee, by notice to the Purchasers within 30 days after the issuance Purchaser or Alipay, as applicable, irrevocably commit to sell a number of Qualifying New Securities. Such notice shall describe the type, price, and terms equity interests of the Qualifying New Securities. Each Purchaser shall have 20 days from the date notice is given to elect to purchase or Alipay up to the number of Qualifying New Securities which equals equity interests the greater of (x) that number of Qualifying New Securities having an aggregate purchase price equal to 400% of Seller and its Subsidiaries own directly in the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants pursuant to this Agreement, or (y) the proportion that the Common Stock then held by such Purchaser (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exerciseAlipay, as applicable, of any shares of preferred stock of and the Company and any other securities Purchaser or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exerciseAlipay, as applicable, shall include in the Purchaser Qualified IPO or the Alipay Qualified IPO, as applicable, such number of all Preferred Stock and other Derivative Securities). The closing equity interests as specified in such notice; provided, that if the managing underwriter of such sale Purchaser Qualified IPO or Alipay Qualified IPO, as applicable, in good faith shall occur within 45 days of have advised the date notice is given to Purchaser or Alipay, as applicable, that, in its opinion, the Purchasers. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined inclusion in the certificate of Designation) thereof, shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 19.99% offering of the number of shares equity interests committed to be sold by the Seller in accordance with this Section 9.8(b) would adversely affect the price or success of Common Stock outstanding immediately after giving the offering, the Purchaser or Alipay, as applicable, shall include in the offering only such number of equity interests as the Purchaser or Alipay, as applicable, is advised can be sold in such offering without such an effect provided that any reduction in equity interests to be included in the offering shall be effected in the following order of priority: (i) first, equity interests that the Purchaser or Alipay, as applicable, proposes to offer for its own account; (ii) second, equity interests that the Seller and its Subsidiaries have committed to sell in the offering; and (iii) third, any equity interests that other equityholders have requested to be sold in such purchase Qualifying New Securitiesoffering. 7.2Notwithstanding anything to the contrary, the rights of the Seller, the Seller Designated Investment Entity or their respective Affiliates under this Section 9.8(b) shall automatically terminate upon the Listing Date.

Appears in 1 contract

Samples: Share and Asset Purchase Agreement (Alibaba Group Holding LTD)

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Participation Right. If In the Company sells any shares of event a series of Preferred Stock and/or rights, options, registration demand is made pursuant to Section 2(a)(i) or warrants to purchase shares of Common Stock or of a series of Preferred Stock, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for shares of a series of Common Stock or Preferred Stock (“Qualifying New Securities”); provided that notwithstanding anything to the contrary any equity, options, warrant or similar equity-linked issuances to employees, consultants or vendors of the Company shall be excluded and not be deemed to be a Qualifying New Securities hereinSection 2(a)(ii) above, the Company shall give promptly, but in any event no later than two (2) Business Days following the 2011 Demand Date send a written notice to the Purchasers within 30 days after the issuance of Qualifying New Securities. Such notice shall describe the type, price, and terms each of the Qualifying New SecuritiesHolders of 2013 Registrable Securities indicating that such registration demand has been made and in reasonable detail any material information relating to the desired offering known to the Company at such time. Each Purchaser Holder of 2013 Registrable Securities shall have 20 days ten (10) Business Days from the date its receipt of such notice is given to elect to purchase up deliver to the number Company a written request specifying the amount of Qualifying New Registrable Securities that such Holder intends to sell and such Holder’s intended method of distribution. Upon receipt of such request, the Company shall use its best efforts to cause all Registrable Securities which equals the greater of (x) that number of Qualifying New Securities having an aggregate purchase price equal to 400% of the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants pursuant to this Agreement, or (y) the proportion that the Common Stock then held by such Purchaser (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of any shares of preferred stock of the Company and any other securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears has been requested to register to be registered under the Securities Act to the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and extent necessary to permit their sale or other Derivative Securities). The closing of such sale shall occur within 45 days of the date notice is given to the Purchasers. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined in the certificate of Designation) thereof, shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined disposition in accordance with Section 13(d) the intended methods of distribution specified in the request of such Holder. If, in connection with any underwritten public offering for the account of the Exchange Act and Holders of 2011 Registrable Securities, the rules promulgated thereundermanaging underwriter(s) thereof shall impose in excess of 19.99% of writing a limitation on the number of shares of Common Stock outstanding immediately after giving effect which may be included in a registration statement because, in the good faith judgment of such underwriter(s), marketing or other factors dictate such limitation is necessary to facilitate such purchase Qualifying New offering, then the Company shall be obligated to include in the registration statement only such limited portion of the Registrable Securities with respect to which each Holder has requested inclusion hereunder as such underwriter(s) shall permit. Any exclusion of Registrable Securities shall be made first, to the 2013 Registrable Securities pro rata amongst the Holders thereof seeking to include 2013 Registrable Securities in such registration statement, in proportion to the number of 2013 Registrable Securities sought to be included by such Holders of 2013 Registrable Securities and second, to the 2011 Registrable Securities pro rata amongst the Holders thereof seeking to include 2011 Registrable Securities in such registration statement, in proportion to the number of 2011 Registrable Securities sought to be included by such Holders of 2011 Registrable Securities. 7.2; provided, however, that the Company shall not exclude any Registrable Securities unless the Company has first excluded all securities sought to be offered on account of the Company and any non-Registrable Securities.

Appears in 1 contract

Samples: Registration Rights Agreement (Champions Oncology, Inc.)

Participation Right. If the Company sells any shares of a series of Preferred Stock and/or rights, options, or warrants to purchase shares of Common Stock or of a series of Preferred Stock, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for shares of a series of Common Stock or Preferred Stock (“Qualifying New Securities”); provided that notwithstanding anything to the contrary any equity, options, warrant or similar equity-linked issuances to employees, consultants or vendors of the Company shall be excluded and not be deemed to be a Qualifying New Securities herein, the Company shall give notice to the Purchasers within 30 days after the issuance of Qualifying New Securities. Such notice shall describe the type, price, and terms of the Qualifying New Securities. Each Purchaser shall have 20 days from the date notice is given to elect to purchase up to the number of Qualifying New Securities which equals the greater of (x) that number of Qualifying New Securities having an aggregate purchase price equal to 400% of the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants pursuant to this Agreement, or (y) the proportion that the Common Stock then held by such Purchaser (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of any shares of preferred stock of the Company and any other securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and other Derivative Securities). The closing of such sale shall occur within 45 days of the date notice is given to the Purchasers. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined in the certificate Certificate of Designation) thereof, shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 19.99% of the number of shares of Common Stock outstanding immediately after giving effect to such purchase Qualifying New Securities. 7.2.

Appears in 1 contract

Samples: Securities Purchase Agreement (Canoo Inc.)

Participation Right. If Following the Company sells Issuance Closing, if the Purchaser proposes to effect the Purchaser Qualified IPO or Alipay proposes to effect the Alipay Qualified IPO, the Purchaser or Alipay, as applicable, shall give the Seller written notice of its intent to do so as soon as reasonably practicable, at a time leaving the Seller a reasonable opportunity to comply with any shares applicable Law in connection with its exercise of a series of Preferred Stock and/or rightsthe right described in this Section 9.8(b), options, or warrants to purchase shares of Common Stock or of a series of Preferred Stock, or securities of and in any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for shares of a series of Common Stock or Preferred Stock event not less than thirty (“Qualifying New Securities”); provided that notwithstanding anything 30) Business Days prior to the contrary any equity, options, warrant contemplated publication or similar equity-linked issuances to employees, consultants or vendors public filing of the Company shall be excluded and not be deemed to be a Qualifying New Securities hereinprospectus for such offering. Within fifteen (15) Business Days following the delivery of such notice, the Company shall give Seller may, at the sole discretion of the Alibaba Independent Committee, by notice to the Purchasers within 30 days after the issuance Purchaser or Alipay, as applicable, irrevocably commit to sell a number of Qualifying New Securities. Such notice shall describe the type, price, and terms equity interests of the Qualifying New Securities. Each Purchaser shall have 20 days from the date notice is given to elect to purchase or Alipay up to the number of Qualifying New Securities which equals equity interests the greater of (x) that number of Qualifying New Securities having an aggregate purchase price equal to 400% of Seller and its Subsidiaries own directly in the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants pursuant to this Agreement, or (y) the proportion that the Common Stock then held by such Purchaser (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exerciseAlipay, as applicable, of any shares of preferred stock of and the Company and any other securities Purchaser or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exerciseAlipay, as applicable, shall include in the Purchaser Qualified IPO or the Alipay Qualified IPO, as applicable, such number of all Preferred Stock and other Derivative Securities). The closing equity interests as specified in such notice; provided, that if the managing underwriter of such sale Purchaser Qualified IPO or Alipay Qualified IPO, as applicable, in good faith shall occur within 45 days of have advised the date notice is given to Purchaser or Alipay, as applicable, that, in its opinion, the Purchasers. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined inclusion in the certificate of Designation) thereof, shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 19.99% offering of the number of shares equity interests committed to be sold by the Seller in accordance with this Section 9.8(b) would adversely affect the price or success of Common Stock outstanding immediately after giving the offering, the Purchaser or Alipay, as applicable, shall include in the offering only such number of equity interests as the Purchaser or Alipay, as applicable, is advised can be sold in such offering without such an effect provided that any reduction in equity interests to be included in the offering shall be effected in the following order of priority: (i) first, equity interests that the Purchaser or Alipay, as applicable, proposes to offer for its own account; (ii) second, equity interests that the Seller and its Subsidiaries have committed to sell in the offering; and (iii) third, any equity interests that other equityholders have requested to be sold in such purchase Qualifying New Securities. 7.2offering.

Appears in 1 contract

Samples: Share and Asset Purchase Agreement (Alibaba Group Holding LTD)

Participation Right. If the Company sells any shares of a series of Preferred Stock and/or rights, options, or warrants to purchase shares of Common Stock or of a series of Preferred Stock, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for shares of a series of Common Stock or Preferred Stock (“Qualifying New Securities”); provided that notwithstanding anything Section 10.4 to the contrary Contract is hereby deleted in its entirety and replaced with the following: “10.4 Participation Right The Company hereby grants the Investor the right but not the obligation (the Participation Right), at the Investor’s sole discretion, to participate in any equity, options, warrant or similar equity-linked issuances to employees, consultants or vendors equity financing of the Company (including any financing of securities convertible for, or exchangeable into, Shares of the Company) (each a Subsequent Equity Financing), whereby the Investor may subscribe for up to fifteen percent (15%) of each Subsequent Equity Financing on terms and conditions (if any) identical to all other subscribers in such financing, provided, however, that: (i) the limitations set forth in clause 5.4(e) shall apply mutatis mutandis to the Investor’s exercise of the Participation Right and (ii) the Investor may not participate in a Subsequent Equity Financing for an amount of securities that would exceed the Share Maximum, unless, the Company has obtained the approval of the TSX to issue such Shares without shareholder approval. The Participation Right shall be excluded subject to the following terms and not conditions: (a) The Company shall provide the Investor with prompt notice in writing of each Subsequent Equity Financing, including all particulars of such Subsequent Equity Financing (the Financing Notice). Each Financing Notice shall be deemed accompanied by all documentation (including without limitation, disclosure documents, offering memoranda, and definitive agreements), as are provided to other subscribers in such Subsequent Equity Financing The Investor shall have no less than five (5) Business Days from the date of receipt of a Financing Notice to advise the Company whether it wishes to participate in such Subsequent Equity Financings and the amount for which the Investor wishes to subscribe under this clause 10.4, which may be less than its entitlement hereunder, provided that if the Company is proposing to undertake a Qualifying New Securities hereinBought Deal in respect of such Subsequent Equity Financing, the Company shall give notice such Financing Notice to the Purchasers within 30 days after Investor as early as practicable in the issuance of Qualifying New Securities. Such notice shall describe the type, price, and terms circumstances in light of the Qualifying New Securities. Each Purchaser speed and urgency under which Bought Deals are conducted and the Investor shall have 20 three (3) days from the date notice is given of receipt of a Financing Notice to elect to purchase up to the number of Qualifying New Securities which equals the greater of (x) that number of Qualifying New Securities having an aggregate purchase price equal to 400% of the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants pursuant to this Agreement, or (y) the proportion that the Common Stock then held by such Purchaser (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of any shares of preferred stock of advise the Company whether it wishes to participate in such proposed Bought Deal and any other securities or rights convertible intothe amount for which the Investor wishes to subscribe under this clause 10.4, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and other Derivative Securities). The closing of such sale shall occur within 45 days of the date notice is given to the Purchaserswhich may be less than its entitlement hereunder. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined in the certificate of Designation) thereofevent the Company proceeds with a registered direct offering, the following shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 19.99% of the number of shares of Common Stock outstanding immediately after giving effect to such purchase Qualifying New Securities. 7.2apply:

Appears in 1 contract

Samples: Convertible Security Funding Agreement (Niocorp Developments LTD)

Participation Right. If Following the Company sells Issuance Closing, if the Purchaser proposes to effect the Purchaser Qualified IPO or Alipay proposes to effect the Alipay Qualified IPO, the Purchaser or Alipay, as applicable, shall give the Seller written notice of its intent to do so as soon as reasonably practicable, at a time leaving the Seller a reasonable opportunity to comply with any shares applicable Law in connection with its exercise of a series of Preferred Stock and/or rightsthe right described in this Section 9.8(b), options, or warrants to purchase shares of Common Stock or of a series of Preferred Stock, or securities of and in any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for shares of a series of Common Stock or Preferred Stock event not less than thirty (“Qualifying New Securities”); provided that notwithstanding anything 30) Business Days prior to the contrary any equity, options, warrant contemplated publication or similar equity-linked issuances to employees, consultants or vendors public filing of the Company shall be excluded and not be deemed to be a Qualifying New Securities hereinprospectus for such offering. Within fifteen (15) Business Days following the delivery of such notice, the Company shall give Seller may, at the sole discretion of the Alibaba Independent Committee, by notice to the Purchasers within 30 days after the issuance Purchaser or Alipay, as applicable, irrevocably commit to sell a number of Qualifying New Securities. Such notice shall describe the type, price, and terms equity interests of the Qualifying New Securities. Each Purchaser shall have 20 days from the date notice is given to elect to purchase or Alipay up to the number of Qualifying New Securities which equals equity interests the greater of (x) that number of Qualifying New Securities having an aggregate purchase price equal to 400% of Seller and its Subsidiaries own directly in the aggregate Purchase Price paid by such Purchaser for Preferred Stock and Warrants pursuant to this Agreement, or (y) the proportion that the Common Stock then held by such Purchaser (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exerciseAlipay, as applicable, of any shares of preferred stock of ​ ​ ​ and the Company and any other securities Purchaser or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants (“Derivative Securities”) then held by such Purchaser) bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exerciseAlipay, as applicable, shall include in the Purchaser Qualified IPO or the Alipay Qualified IPO, as applicable, such number of all Preferred Stock and other Derivative Securities). The closing equity interests as specified in such notice; provided, that if the managing underwriter of such sale Purchaser Qualified IPO or Alipay Qualified IPO, as applicable, in good faith shall occur within 45 days of have advised the date notice is given to Purchaser or Alipay, as applicable, that, in its opinion, the Purchasers. Notwithstanding the foregoing, no Purchaser, or Affiliate (as defined inclusion in the certificate of Designation) thereof, shall be entitled to purchase Qualifying New Securities hereunder in an amount that would result in the Purchaser, in the aggregate and together with any Affiliate of such Purchaser, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 19.99% offering of the number of shares equity interests committed to be sold by the Seller in accordance with this Section 9.8(b) would adversely affect the price or success of Common Stock outstanding immediately after giving the offering, the Purchaser or Alipay, as applicable, shall include in the offering only such number of equity interests as the Purchaser or Alipay, as applicable, is advised can be sold in such offering without such an effect provided that any reduction in equity interests to be included in the offering shall be effected in the following order of priority: (i) first, equity interests that the Purchaser or Alipay, as applicable, proposes to offer for its own account; (ii) second, equity interests that the Seller and its Subsidiaries have committed to sell in the offering; and (iii) third, any equity interests that other equityholders have requested to be sold in such purchase Qualifying New Securities. 7.2offering.

Appears in 1 contract

Samples: Share and Asset Purchase Agreement (Alibaba Group Holding LTD)

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