Right of Participation. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, any (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of issued and outstanding ADSs of the Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.
Appears in 2 contracts
Samples: Securities Subscription Agreement, Securities Subscription Agreement (Amarin Corp Plc\uk)
Right of Participation. Subject The Company shall, prior to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, proposed issuance by the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, of any (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company its securities (other than debt securities with no equity feature), offer to each Preferred Holder by written notice the right, for a period of fifteen (15) including without limitationdays, any debt security to purchase for cash at an amount equal to the price or other consideration for which by its terms is convertible such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or exchangeable for any (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Preferred Holder will continue to maintain its same proportionate equity security ownership in the Company as of the Companydate of such notice (treating each Preferred Holder, (iv) any security for the purpose of such computation, as the holder of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of Common Stock which would be issuable to such Preferred Holder upon conversion, exercise and exchange of all securities held by such Preferred Holder on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons); provided, however, that the participation rights of the Preferred Holders pursuant to this Section 12(b) shall not apply to securities issued (A) upon conversion of any of the Preferred Shares, (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 subscriptions, warrants, options, convertible securities, or other rights which are outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity as long as such acquisition is approved by the Board of Directors, which approval must include one of the directors elected by the holders of Series A Preferred Stock and outstanding ADSs one of the directors elected by the holders of Series B and/or Series C Stock, (E) pursuant to a bona fide firm commitment underwritten public offering, (F) pursuant to the exercise of options to purchase Common Stock granted to directors, officers, employees or consultants of the Company calculated on a fully diluted basis in connection with their service to include the Company, not to exceed in the aggregate 25,734,473 shares (i) appropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the total like with respect to the Common Stock)or such greater number of ADSs subject shares as may be approved from time to outstanding awards granted under stock plans time by the Board of Directors, which approval must include one of the directors elected by the holders of Series A Preferred Stock and one of the directors elected by the holders of Series B and/or Series C Stock (the shares exempted by this clause (F) being hereinafter referred to as the “Reserved Employee Shares”), (G) to financial institutions, lenders or lessors in connection with lease liens, equipment financing or other loans as long as such issuance is approved by the Board of Directors, which approval must include one of the directors elected by the holders of Series A Preferred Stock and one of the directors elected by the holders of Series B and/or Series C Stock, (H) to vendors, trade partners, service providers, or in connection with strategic relationships approved by the Board of Directors, which approval must include one of the directors elected by the holders of Series A Preferred Stock and one of the directors elected by the holders of Series B and/or Series C Stock and (I) pursuant to the Purchase Agreement. The Company’s written notice to the Preferred Holders shall describe the securities proposed to be issued by the Company and (ii) specify the total number, price and payment terms. Each Preferred Holder may accept the Company’s offer as to the full number of shares that could securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the aforesaid fifteen (15) day period, in which event the Company shall promptly sell and such Preferred Holder shall buy, upon the terms specified, the number of securities agreed to be purchased by such Preferred Holder. The Company shall be free at any time prior to one hundred and twenty (120) days after the date of its notice of offer to the Preferred Holders, to offer and sell to any third party or parties the remainder of such securities proposed to be issued upon by the exercise or conversion of outstanding Company (including but not limited to the securities (not agreed by the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”Preferred Holders to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such other terms notice of offer to the Preferred Holders. However, if such third party sale or sales are not consummated within such one hundred and twenty (120) day period, the Company shall not sell such securities as shall not have been specified by the Company in writing delivered to purchased within such Offeree (the “Offer”period without again complying with this Section 12(b), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Boingo Wireless Inc)
Right of Participation. Subject to any statutory preemptive rights under applicable law, which have not been satisfied (a) If either or waived, until the third (3rd) anniversary both of the Closing DateIP Parties proposes to sell shares of Common Stock for value, the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, any but excluding (i) ADSsa sale which is pursuant to a public offering registered under the Securities Act, (ii) a sale made in accordance with Rule 144 under the Securities Act (or any other equity security of the Company, including without limitation, preference sharessimilar successor provision), (iii) any debt security a sale to an Affiliate of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, IP and (iv) any security sale in which all of the Company that is a combination of debt Parties agree and equityare permitted to participate, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any then such equity security or any such debt security of the Company, unless in each case the Company IP Party shall have first offered to issue such securities offer (the “Offered Securities”"Participation Offer") to include in the Major Purchaser(s) and each other person or entity that has such proposed sale a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of issued and outstanding ADSs Common Stock designated by any of the Company calculated on other Parties, not to exceed, in respect of any such other Party, the number of shares equal to the product of (A) the aggregate number of shares of Common Stock to be sold by such IP Party to the proposed transferee and (B) a fully diluted basis fraction the numerator of which is equal to the number of shares of Merger Shares held by such other Party and the denominator of which is equal to the number of shares of Common Stock held by all the Parties (excluding shares of Common Stock held by persons to whom a Participation Offer is made which are not Merger Shares); provided that if the consideration to be received by such IP Party includes any securities subject to Section 5 of the Securities Act, only Parties who are Accredited Investors shall be entitled to include their shares of Common Stock in such sale. The IP Party making the Participation Offer (ithe "Offering IP Party") shall give written notice to each other Party of the total Participation Offer (the "Tag-Along Notice") at least 15 days prior to the proposed sale. The Tag-Along Notice shall specify the proposed transferee, the number of ADSs subject shares of Common Stock to outstanding awards granted under stock plans be sold to such transferee, the amount and type of consideration to be received therefor, and the place and date on which the sale is to be consummated. Each other Party who wishes to include shares of Common Stock in the proposed sale in accordance with the terms of this Section 3.1(a) shall so notify the Offering IP Party not more than 10 days after the date of the Company and (ii) Tag-Along Notice. The Participation Offer shall be conditioned upon consummation of the total sale of shares of Common Stock pursuant to the transactions contemplated in the Tag-Along Notice with the transferee named therein. If any Party shall have accepted the Participation Offer, the Offering IP Party shall reduce to the extent necessary the amount of securities it otherwise would have sold in the proposed sale so as to permit the other Parties who have accepted the Participation Offer to sell the number of shares that could be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”they are entitled to sell under this Section 3.1(a), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price Offering IP Party and on such other terms as Parties shall have been sell the number of shares specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event Participation Offer to the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following proposed transferee in accordance with the first public announcement terms of such offering and consider sale set forth in good faith an allocation of securities in such offeringthe Tag-Along Notice.
Appears in 1 contract
Samples: Stockholders Agreement (Highlands Insurance Group Inc)
Right of Participation. Subject The Company shall, prior to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, ---------------------- proposed issuance by the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, of any (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company its securities (other than debt securities with no equity feature), offer to each Major Purchaser under this Agreement by written notice the right, for a period of twenty (20) including without limitationdays, any debt security to purchase for cash at an amount equal to the price or other consideration for which by its terms is convertible such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or exchangeable for any (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Major Purchaser will continue to maintain its same proportionate equity security ownership in the Company as of the Companydate of such notice (treating each Major Purchaser, (iv) any security for the purpose of such computation, as the holder of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of issued Common Stock which would be issuable to such Major Purchaser upon conversion, exercise and outstanding ADSs exchange of all securities (including but not limited to the Preferred Shares) held by such Major Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons); provided, however, that the participation rights of the Major Purchasers pursuant to this Section 6.2 shall not apply to securities issued (A) upon conversion of any of the Preferred Shares or Common Shares, (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 subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule IV as being outstanding ----------- on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company calculated or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock, or as direct stock grants, not to exceed twenty-five percent (25%) of the Company's outstanding shares of capital stock on a fully diluted basis basis, that were granted by the Board of Directors and approved by the Compensation Committee (as defined in Section 6.19) under any Company stock option plan to include (i) the total number of ADSs subject to outstanding awards granted under stock plans directors, officers, employees or consultants of the Company and (ii) in connection with their service to the total number of shares that could be issued upon the exercise or conversion of outstanding securities Company (the “Basic Amount”shares exempted by this clause (F) being hereinafter referred to as the "Reserved Employee Shares"), and (yG) such additional portion pursuant to the exercise by Thomson of its preemptive rights to purchase securities described in Subsections (D) or (F) above under the Thomson Agreement. The Company's written notice to the Major Purchasers shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. Each Major Purchaser may accept the Company's offer as to the full number of securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the Offered Securities as aforesaid twenty (20) day period, in which event the Company shall promptly sell and such Offeree Major Purchaser shall indicate it will purchase should buy, upon the other Offerees subscribe for less than their Basic Amounts terms specified, the number of securities agreed to be purchased by such Major Purchaser. The Company shall be free at any time prior to one hundred twenty (120) days after the “Undersubscription Amount”date of its notice of offer to the Major Purchasers, to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company (including but not limited to the securities not agreed by the Major Purchasers to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such other terms notice of offer to the Major Purchasers. However, if such third party sale or sales are not consummated within such one hundred twenty (120) day period, the Company shall not sell such securities as shall not have been specified by the Company in writing delivered to purchased within such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offeringwithout again complying with this Section 6.2.
Appears in 1 contract
Samples: Purchase Agreement (CCBN Com)
Right of Participation. Subject to the terms and conditions of this Section 4.1 and applicable securities laws, if the Company proposes to offer or sell any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing DateNew Securities, the Investor shall have a right to participate in such offering of New Securities on a pro rata basis based on its percentage equity ownership in the Company. (a) The Company shall not issuegive written notice (the "Notice of Issuance") to the Investor, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, any stating (i) ADSsits bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities. The Investor shall have thirty (30) days from the date of the Notice of Issuance to agree to purchase its pro rata share of such New Securities for the same consideration, and otherwise upon the terms specified in the Notice of Issuance by giving written notice to the Company, and stating therein the quantity of New Securities to be purchased by Investor. The Company and Investor shall select a date not later than twenty (20) days (or longer if required by law) after the expiration of the thirty (30) day notice period referenced above for the closing of the purchase and sale of the New Securities. In the event any purchase by Investor is not consummated, other equity security than as a result of the fault of the Company, including without limitationwithin the provided time period, preference shares, (iii) any debt security of the Company may issue the New Securities subject to purchase by Investor free and clear from the restrictions of this Section 4.1. Any New Securities not elected to be purchased by Investor may be sold by the Company to the Person to which the Company intended to sell such New Securities on terms and conditions no less favorable to the Company than those offered to Investor. (b) The right of participation in this Section 4.1 shall not be applicable to Exempted Securities. For purposes of this Agreement, "Exempted Securities" shall mean: i. shares of Common Stock, Options or Convertible Securities issued or issuable by reason of a dividend, stock split, split-up or other than debt with no equity feature) including without limitationdistribution on shares of Common Stock; 13 ii. shares of Common Stock or Options issued or issuable to employees or directors of, or consultants or advisors to, the Company or any debt security which of its subsidiaries pursuant to a plan, agreement or arrangement approved by its terms is convertible into or exchangeable for any equity security the Board of Directors of the Company; iii. shares of Common Stock, (iv) any security of the Company that is a combination of debt and equityOptions or Convertible Securities issued or issuable to banks, equipment lessors or other financial institutions, or (v) any optionto real property lessors, warrant pursuant to a debt financing, equipment leasing or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security real property leasing transaction approved by the Board of Directors of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) ; iv. shares of Common Stock issued pursuant to the Major Purchaser(s) and each other person bona fide acquisitions, mergers or entity that has such a right (each an “Offeree” and collectivelysimilar transactions, as approved by the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion Board of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise Directors; or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of v. shares of Common Stock issued and outstanding ADSs in connection with any future licensing of the Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”)technology from third parties, and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified approved by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt Board of the offerDirectors. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.4.2
Appears in 1 contract
Right of Participation. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, any (i) ADSsFor so long as the Buyers, in the aggregate, hold five percent (ii5%) any other equity security or more of the outstanding shares of the Company’s Common Stock (with such percentage calculated on a fully diluted basis as if all outstanding convertible securities were converted into the Company’s Common Stock), including without limitation, preference shares, the Buyers shall have (iiix) a right of participation to purchase all or part of their pro rata portion of any debt security New Securities (defined as any shares of Common Stock or Preferred Stock of the Company (other than issued in any financing of equity or debt with no equity featurefeatures after the date of this Agreement, exclusive of any financing(s) including without limitationconducted during a twelve-month period with gross proceeds of less than $750,000, any debt security which shares or rights to acquire shares issued pursuant to employee benefit plans approved by its terms is convertible into or exchangeable for any equity security of the Company, (iv’s board or shares issued upon exercise or conversion of shares or rights to acquire shares that are outstanding on the date of this Agreement and shares issues in any business combination or strategic alliance the primary purpose of which is not to raise funding) any security of which the Company that is issues or sells and (y) a combination right of debt and equity, or participation to purchase up to twenty-five percent (v25%) of any option, warrant or other right New Securities at a per share price equal to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case per share price at which the Company shall have first offered proposes to issue such securities New Securities, if the per share price of such New Securities is less than $1.55 per share (the “Offered Securities”) as adjusted for any stock dividend, subdivision or split), subject in both cases to the Major Purchaser(sterms and conditions set forth below and applicable legal, regulatory and stock market listing requirements. Each Buyer’s pro rata portion, for purposes of this Paragraph (n) and each other person or entity that has such shall equal a right (each an “Offeree” and collectivelyfraction, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion numerator of the Offered Securities as which is the number of ADSs then issued and outstanding shares of common stock held by such Buyer that were purchased hereunder or pursuant to the exercise of rights under this Section 7(n) (including shares then issuable upon assuming the exercise or conversion of outstanding securitiesall options, including without limitation the Shares) warrants or convertible securities owned by such Offeree bears to Buyer into the Company’s Common Stock), and the denominator of which is the total number of shares of the Company’s Common Stock then issued and outstanding ADSs of the Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon assuming the exercise or conversion of outstanding all options, warrants or convertible securities (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should Company into the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”Company’s Common Stock), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.
Appears in 1 contract
Right of Participation. Subject The Company shall, prior to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, issuance ---------------------- by the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, of any (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company its securities (other than debt securities with no equity feature), offer to each holder of Registrable Shares, by written notice, the right, for a period of thirty (30) including without limitationdays, to purchase for cash at a purchase price equal to the price or other consideration for which such securities are to be issued, all or any debt security which by portion of that number of such securities so that, after giving effect to such issuance, such holder will continue to maintain its terms is convertible into or exchangeable for any same proportionate equity security ownership in the Company as it held as of the Companydate of such notice; provided, however, that the participation rights pursuant to this subsection (u) shall not apply to securities issued (A) upon exercise of any of the Warrants, (ivB) as a stock dividend or upon any security 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 subscriptions, warrants, options, convertible securities, or other rights which are listed in Exhibit 3.20, (D) solely in consideration for the ------------- acquisition (whether by merger or otherwise) by the Company of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment underwritten public offering and (F) upon exercise of options granted to officers, directors and employees of the Company that is a combination after the date hereof to purchase up to an aggregate of debt 300,000 shares of Common Stock. The Company's written notice to each holder of Registrable Shares shall describe the securities proposed to be issued by the Company and equityspecify the number, price, payment terms and the name or (v) any option, warrant names of the proposed purchaser or other right purchasers. Each holder of Registrable Shares may accept the Company's offer as to subscribe for, purchase or otherwise acquire any such equity security the full number of securities offered or any such debt security lesser number, by written notice thereof given by it to the Company at any time prior to the expiration of the Companyaforesaid thirty (30) day period, unless in each case which event the Company shall have first offered to issue promptly sell and such securities (holder shall buy, upon the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectivelyterms specified, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) securities agreed to be purchased by such Offeree bears holder. The Company shall be free at any time prior to ninety (90) days after the date of its notice of offer to the total holders of Registrable Shares, to offer and sell the number of shares such securities not agreed by such holders of issued and outstanding ADSs of the Company calculated on a fully diluted basis Registrable Shares to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”)purchased by them, at a price and on payment terms no less favorable to the Company than those specified in such other terms notice of offer to such holders of Registrable Shares and to the purchaser or purchasers named in such notice. However, if such third party sale or sales are not consummated within such ninety (90) day period, the Company shall not sell such securities as shall not have been specified by purchased within such period without again complying with this subsection (u). All calculations set forth in this subsection (u) shall give effect to and assume the Company in writing delivered to conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter that are so convertible, exercisable or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offeringexchangeable.
Appears in 1 contract
Samples: Peritus Software Services Inc
Right of Participation. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until In the third (3rd) anniversary of the Closing Date, event that the Company shall not issue, sell intends to issue ---------------------- to a third party or exchange, agree or obligate itself receives from a third party an offer to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, purchase any (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security securities of the Company (other than debt securities with no equity feature), it shall offer to each holder of Purchased Shares or Warrant Shares, by written notice, the right, for a period of twenty (20) including without limitationdays, to purchase for cash, at a purchase price equal to the price or other consideration for which such securities are to be issued, a number of such securities (up to but not exceeding that number of such securities that the Company intends to issue or has received an offer to purchase) that would enable, after giving effect to such issuance, such holder to maintain its same proportionate fully-diluted equity ownership in the Company as it held as of the date of such notice; provided, however, that the participation rights pursuant to this Subsection (d) -------- ------- shall not apply to securities issued: (A) as a stock dividend or upon any debt security 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, (B) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in Exhibit 3.04, (C) solely in ------------ consideration for the acquisition (whether by merger or otherwise) by the Company of stock or assets of any other entity, (D) pursuant to a best efforts or firm commitment underwritten public offering and (E) upon exercise of options granted to directors, officers and employees after the date hereof. The Company's written notice to each holder of Purchased Shares or Warrant Shares shall describe the securities proposed to be issued by the Company and specify the number, price, payment terms. Each holder of Purchased Shares or Warrant Shares may accept the Company's offer as to the full number of securities offered or any lesser number, by written notice thereof given by it to the Company at any time prior to the expiration of the aforesaid twenty (20) day period, in which event the Company shall, contemporaneously with or promptly after the sale to any third party pursuant to this Subsection (d), sell and such holder shall buy, upon the terms specified, the number of securities agreed to be purchased by such holder. The Company shall be free at any time after the date of its terms is convertible into notice of offer to the holders of Purchased Shares or exchangeable for Warrant Shares, to offer and sell the number of such securities specified in its notice of offer to any equity security third party; provided, however, if such third party sale or -------- ------- sales are not consummated within ninety (90) days after the date of the Company's notice of offer, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue not sell such securities as shall not have been purchased within such period without again complying with this Subsection (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as d). All calculations set forth herein Each Offeree in this Subsection (d) shall have give effect to and assume the right to subscribe for: conversion, exercise and exchange into or for (xwhether directly or indirectly) that portion shares of the Offered Securities as the number Common Stock of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding all such securities, including without limitation the Shares) by such Offeree bears to the total number of shares of issued and outstanding ADSs of the Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”)are so convertible, and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.exercisable or
Appears in 1 contract
Samples: View Tech Inc
Right of Participation. Subject The Company shall, prior to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, ---------------------- proposed issuance by the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, of any (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company its securities (other than debt securities with no equity feature), offer to AOL under this Agreement by written notice the right, for a period of twenty (20) including without limitationdays, any debt security to purchase for cash at an amount equal to the price or other consideration for which by its terms is convertible such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or exchangeable for any (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), AOL will continue to maintain its same proportionate equity security ownership in the Company as of the Companydate of such notice (treating AOL, (iv) any security for the purpose of such computation, as the holder of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of Common Stock which would be issuable to AOL upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by AOL on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons), but excluding shares of Common Stock issuable to AOL upon its exercise of any right to purchase Common Stock pursuant to the Warrant issued and outstanding ADSs to AOL by the Company in connection with the Interactive Services Agreement; provided, however, that the participation rights of AOL pursuant to this Section 6.2 shall not apply to securities issued (A) upon conversion of any of the Preferred Shares or Common Shares, (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 subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule IV as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company calculated or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock, or as direct stock grants, not to exceed twenty-five percent (25%) of the Company's outstanding shares of capital stock on a fully diluted basis basis, that were granted by the Board of Directors and approved by the Compensation Committee (as defined in Section 6.19) under any Company stock option plan to include (i) the total number of ADSs subject to outstanding awards granted under stock plans directors, officers, employees or consultants of the Company and (ii) in connection with their service to the total number of shares that could be issued upon the exercise or conversion of outstanding securities Company (the “Basic Amount”shares exempted by this clause (F) being hereinafter referred to as the "Reserved Employee Shares"), and (yG) such additional portion pursuant to the exercise by Thomson of its preemptive rights to purchase securities described in Subsections (D) or (F) above under the Thomson Agreement. The Company's written notice to AOL shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. AOL may accept the Company's offer as to the full number of securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the Offered Securities as aforesaid twenty (20) day period, in which event the Company shall promptly sell and AOL shall buy, upon the terms specified, the number of securities agreed to be purchased by AOL. The Company shall be free at any time prior to one hundred twenty (120) days after the date of its notice of offer to AOL, to offer and sell to any third party or parties the remainder of such Offeree shall indicate it will purchase should securities proposed to be issued by the other Offerees subscribe for less than their Basic Amounts Company (including but not limited to the “Undersubscription Amount”securities not agreed by AOL to be purchased by it), at a price and on payment terms no less favorable to the Company than those specified in such other terms notice of offer to AOL. However, if such third party sale or sales are not consummated within such one hundred twenty (120) day period, the Company shall not sell such securities as shall not have been specified by the Company in writing delivered to purchased within such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offeringwithout again complying with this Section 6.2.
Appears in 1 contract
Samples: Purchase Agreement (CCBN Com)
Right of Participation. Subject The Company shall, prior to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, proposed issuance by the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, of any (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company its securities (other than debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) including without limitationdays, any debt security to purchase for cash at an amount equal to the price or other consideration for which by its terms is convertible such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or exchangeable for any (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity security ownership in the Company as of the Companydate of such notice (treating each Purchaser, (iv) any security for the purpose of such computation, as the holder of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of Common Stock which would be issuable to such Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons); provided, however, that the participation rights of the Purchasers pursuant to this Section 5.2 shall not apply to securities issued and (A) upon conversion of any of the Preferred Shares, (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 subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule III as being outstanding ADSs on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock granted to directors, officers, employees or consultants of the Company calculated on a fully diluted basis in connection with their service to include the Company, or to suppliers or other parties as payment for goods or services rendered to the Company, not to exceed in the aggregate 3,927,629 shares (iappropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Common Stock) less the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be (as so adjusted) issued upon pursuant to subscriptions, warrants, options, convertible securities, or other rights outstanding on the exercise or conversion date of outstanding securities this Agreement and listed in Schedule III pursuant to clause (C) above (the “Basic Amount”shares exempted by this clause (F) being hereinafter referred to as the "Reserved Employee Shares"), and (yG) such additional portion upon the exercise of any right which was not itself in violation of the Offered Securities as such Offeree terms of this Section 5.2. The Company's written notice to the Purchasers shall indicate it will purchase should describe the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified securities proposed to be issued by the Company in writing delivered and specify the number, price and payment terms. Each Purchaser may accept the Company's offer as to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.full number of
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (New Era of Networks Inc)
Right of Participation. Subject The Company shall, prior to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, proposed issuance by the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, of any (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company its securities (other than debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) including without limitationdays, any debt security to purchase for cash at an amount equal to the price or other consideration for which by its terms is convertible such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or exchangeable for any (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity security ownership in the Company as of the Companydate of such notice (treating each Purchaser, (iv) any security for the purpose of such computation, as the holder of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of Common Stock which would be issuable to such Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons); provided, however, that the participation rights of the Purchasers pursuant to this Section 5.2 shall not apply to securities issued and (A) upon conversion of any of the Preferred Shares, (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 subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule III as being outstanding ADSs on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock granted to directors, officers, employees or consultants of the Company calculated on a fully diluted basis in connection with their service to include (ithe Company, or to suppliers or other parties as payment for goods or services adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Common Stock) less the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be (as so adjusted) issued upon the exercise pursuant to subscriptions, warrants, options, convertible securities, or conversion of other rights outstanding securities (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt date of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.this
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (New Era of Networks Inc)
Right of Participation. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until (i) For a period of 12 months following the third (3rd) anniversary of the Initial Closing Date, the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, exchange or reserve or set aside for issuance, sale or exchange, in exchange (a transaction not involving a public offering, any (i) ADSs"Future Issuance"), (iiA) any shares of Common Stock, (B) any other equity security of the Company, including without limitation, preference shareslimitation shares of preferred stock, (iiiC) any debt security of the Company (other than debt with no equity feature) ), including without limitation, limitation any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (ivD) any security of the Company that is a combination of debt and equity, or (vE) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities sell (in the “case of public offerings, to the extent permitted by the SEC and other applicable laws, as reasonably determined by the Company upon consultation with counsel) the Offered Securities”Securities (as defined) to the Major Purchaser(s) Buyers (in all respects upon identical terms and each other person or entity that has such a right (each an “Offeree” conditions, including, without limitations, unit price and collectively, the “Offerees”interest rates) as set forth herein Each Offeree follows: The Company shall have the right offer to subscribe for: sell to each Buyer (x1) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) Initial Common Shares acquired by such Offeree Buyer at the Initial Closing bears to the total number of shares of issued and outstanding ADSs of Initial Common Shares acquired by all Buyers at the Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities Initial Closing (the “"Basic Amount”"), and (y2) such additional portion of the Offered Securities as such Offeree Buyer shall indicate it will purchase should the other Offerees Buyers subscribe for less than their Basic Amounts (the “"Undersubscription Amount”"), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree Buyer (the “"Offer”"), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second of twenty (2nd20) Trading Day following days from receipt of the offerOffer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary "Offered Securities" means one-half of the Closing Date, aggregate amount of the securities being issued or sold in the event Future Issuance; provided, however, that with respect to Future Issuances that are underwritten public offerings, "Offered Securities" means the Company commences a public offering Buyers' pro rata share of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation aggregate amount of securities being issued or sold in such offeringFuture Issuance, calculated on a fully diluted basis.
Appears in 1 contract
Right of Participation. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary termination provisions ---------------------- of the Closing DateSection 5.27 below, the Company shall not issueshall, sell or exchange, agree or obligate itself prior to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, any (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of proposed issuance by the Company of any of its securities (other than debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) including without limitationdays, any debt security to purchase for cash at an amount equal to the price or other consideration for which by its terms is convertible such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or exchangeable for any (whether directly or indirectly) shares of Class A Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity security ownership in the Company as of the Companydate of such notice (treating each Purchaser, (iv) any security for the purpose of such computation, as the holder of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of Class A Common Stock which would be issuable to such Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the shares of Series B Convertible Preferred Stock) held by such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Class A Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons); provided, however, that the participation rights of the Purchasers pursuant to this Section 5.02 shall not apply to securities issued and (A) upon conversion of any of the shares of Series A Convertible Preferred Stock or Series B Convertible Preferred Stock, (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 subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule IV ----------- as being outstanding ADSs on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock granted or to be granted to directors, officers, employees or consultants of the Company calculated on a fully diluted basis in connection with their service to include the Company, not to exceed in the aggregate 2,835,695 shares (iappropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Class A Common Stock) less the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be (as so adjusted) issued upon pursuant to subscriptions, warrants, options, convertible securities, or other rights outstanding on the exercise or conversion date of outstanding securities this Agreement and listed in Schedule IV pursuant to clause (C) above (the “Basic Amount”shares ----------- exempted by this clause (F) being hereinafter referred to as the "Reserved Employee Shares"), and (yG) such additional portion upon the exercise of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), any right which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have was not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.itself
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Peritus Software Services Inc)
Right of Participation. Subject For so long as at least two-thirds of the Preferred Shares and the Conversion Shares in the aggregate, remain held by the Investor or his affiliates, the Company shall, prior to any statutory preemptive rights under applicable lawproposed issuance by the Company of any of its securities (other than debt securities with no equity feature), offer to the Investor by written notice the right, for a period of 15 days, to purchase for cash at the price or other consideration for which have not been satisfied such securities are to be issued a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or waivedfor shares of Common Stock of all such securities that are so convertible, until exercisable or exchangeable), the third (3rd) anniversary Investor will continue to maintain his same proportionate beneficial equity ownership in the Company represented by the Preferred Shares, the Conversion Shares and any other shares of Common Stock that he owns, if any, as of the Closing Datedate of such notice (treating the Investor, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to the Investor upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by the Investor on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons); provided, however, that the participation rights of the Investor pursuant to this Section 8 shall not apply to securities issued (A) upon conversion of any of the Preferred Shares, (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 rights to acquire Common Stock from the Company outstanding on January 1, 2005 set forth in Schedule 8(C), (D) pursuant to options to purchase Common Stock from the Company issued to employees, consultants and members of the Board of Directors (provided that such excluded options or equity incentives are approved by a majority of the disinterested members of the Board of Directors of the Company), (E) solely in consideration for the acquisition (whether by merger or otherwise) by the Company of all or substantially all of the stock or assets of any other entity, (F) pursuant to a public offering of the Company's securities. The Company's written notice to the Investor shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. The Investor may accept the Company's offer as to the full number of securities offered to him or any lesser number, by written notice thereof given by him to the Company prior to the expiration of the aforesaid 15 day period, in which event the Company shall sell and the Investor shall buy, upon the terms specified, the number of securities agreed to be purchased by Investor. The Company shall thereafter be free at any time prior to ninety days after the date of its notice of offer to the Investor to offer and sell to any third party the remainder of such securities proposed to be issued by the Company at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Investor. If such third party sale or sales are not consummated within such ninety-day period, the Company shall not issue, sell or exchange, agree or obligate itself such securities as shall not have been purchased within such period without again complying with this Section 8. The right of participation set forth in this Section 8 shall also apply to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, any (i) ADSs, (ii) and be proportionately shared with the participation rights of any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that who has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the acquired Preferred Shares) by such Offeree bears to the total number of shares of issued and outstanding ADSs of the Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.
Appears in 1 contract
Samples: Securities Purchase Agreement (Good Times Restaurants Inc)
Right of Participation. Subject (a) The Company shall, prior to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, proposed issuance by the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, of any (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company its securities (other than debt securities with no equity feature), offer to the Purchaser by written notice the right, for a period of fifteen (15) including without limitationdays, any debt security to purchase for cash at an amount equal to the price or other consideration for which by its terms is convertible such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or exchangeable for any (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), the Purchaser will continue to maintain its same proportionate equity security ownership in the Company represented by the Preferred Shares and the Conversion Shares that it owns, if any, as of the Companydate of such notice (treating the Purchaser, (iv) any security for the purpose of such computation, as the holder of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of issued Common Stock which would be issuable to the Purchaser upon conversion, exercise and outstanding ADSs exchange of all securities (including but not limited to the Preferred Shares) held by such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons); provided, however, that the participation rights of the Purchaser pursuant to this Section 6.02 shall not apply to securities issued (A) upon conversion of any of the Preferred Shares, (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 subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule III as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company calculated on or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a fully diluted basis firm commitment public offering. The Company's written notice to include (i) the total number of ADSs subject Purchaser shall describe the securities proposed to outstanding awards granted under stock plans of be issued by the Company and specify the number, price and payment terms. (ii) The number of shares that the Purchaser is entitled to purchase under this Section 6.02 shall be referred to as its "Pro Rata Share." The total number of shares that could the Purchaser is entitled to purchase under this Section 6.02 shall be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”referred to as "Offered Shares"), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Good Times Restaurants Inc)
Right of Participation. Subject For so long as the Convertible Note (or the underlying Preferred Stock or Common Stock) is outstanding and held by the Purchaser, the Purchaser shall be given not less than ten business days prior written notice of any proposed sale by the Company of its Common Stock or other securities or equity linked debt obligations, except in connection with (i) full or partial consideration in connection with a strategic merger, acquisition, consolidation or purchase of substantially all of the securities or assets of corporation or other entity which holders of such securities or debt are not at any time granted registration rights, (ii) the Company’s issuance of securities in connection with strategic license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capital and which holders of such securities or debt are not at any time granted registration rights, (iii) the Company’s issuance of Common Stock or the issuances or grants of options to any statutory preemptive rights under applicable lawpurchase Common Stock to employees, directors, and consultants, pursuant to plans authorized by the non-employee directors which have shall not been satisfied exceed 1,250,000 shares of Common Stock, (iv) as a result of the exercise of Warrants or waived, until conversion of the third (3rd) anniversary Convertible Note or Preferred Stock which are granted or issued pursuant to this Agreement on the terms described in the transaction documents as of the Closing Date, the Company shall (v) an underwritten public offering in connection with not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a less than $25,000,000 of gross proceeds of such public offering, any offering and (i) ADSs, (iivi) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security securities of the Company that is a combination have been issued without the approval of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security at least one of the Company, unless in each case Prior Directors (collectively the Company shall have first offered foregoing are “Excepted Issuances”). The Purchaser who exercises its rights pursuant to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree this Section 3.11 shall have the right to subscribe for: (x) that portion of during the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of issued and outstanding ADSs of the Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day ten business days following receipt of the offer. Subject notice to any statutory preemptive rights under applicable lawparticipate in such offered Common Stock, which have not been satisfied debt or waived, until other securities in accordance with the third (3rd) anniversary of the Closing Date, terms and conditions set forth in the event notice of sale by using the Company commences a public offering of its securitiesoutstanding balance including principal, it shall instruct its underwriter or placement agent interest, liquidated damages and any other amount then owing to such Purchaser by the Company, to pay for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offeringparticipation.
Appears in 1 contract
Samples: Securities Purchase Agreement (Global Payment Technologies Inc)
Right of Participation. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rdi) anniversary For a period of 12 months following the Closing Date, the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, exchange or reserve or set aside for issuance, sale or exchange, in exchange (a transaction not involving a public offering, any (i) ADSs"FUTURE ISSUANCE"), (iiA) any shares of Common Stock, (B) any other equity security of the Company, including without limitation, preference shareslimitation shares of preferred stock, (iiiC) any debt security of the Company (other than debt with no equity feature) ), including without limitation, limitation any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (ivD) any security of the Company that is a combination of debt and equity, or (vE) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue sell one-half of the aggregate amount of such securities (in all respect upon identical terms and conditions, including, without limitation, unit price and interest rates) (the “Offered Securities”"OFFERED SECURITIES") to the Major Purchaser(s) and Buyers as follows: The Company shall offer to sell to each other person or entity that has such a right Buyer (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x1) that portion of the Offered Securities as the number of ADSs shares of Common Stock (including all shares of capital stock convertible into or exercisable for Common Stock on an as-converted and as-exercised basis) then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree Buyer and acquired pursuant to the terms of the Transaction Documents, bears to the total number of shares of issued Common Stock (including all shares of capital stock convertible into or exercisable for Common Stock on an as-converted and outstanding ADSs as-exercised basis) held on such date by all Buyers and acquired pursuant to the terms of the Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities Transaction Documents (the “Basic "BASIC Amount”"), and (y2) such additional portion of the Offered Securities as such Offeree Buyer shall indicate it will purchase should the other Offerees Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”"UNDERSUBSCRIPTION AMOUNT"), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree Buyer (the “Offer”"OFFER"), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second of twenty (2nd20) Trading Day following days from receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offeringOffer.
Appears in 1 contract
Samples: Securities Purchase Agreement (Valence Technology Inc)
Right of Participation. Subject In connection with each private placement of equity securities (“New Securities”) effected by the Company after the date of this agreement pursuant to any statutory preemptive rights an exemption from registration under applicable lawthe Securities Act of 1933, which have not been satisfied or waivedas amended, until up to an aggregate amount of $16.9 million (each a “Private Placement” and collectively the third (3rd) anniversary of the Closing Date“Private Placements”), the Company shall not issuegive each of the Series E Holders written notice (the “Rights Notice”) of each applicable Private Placement describing the New Securities, sell the price, the general terms upon which the Company proposes to issue such New Securities, and the number of New Securities that such Series E Holder has the right to purchase in each Private Placement under this Section 4. Each such Series E Holder shall have five (5) calendar days from delivery of the Rights Notice to agree to purchase all or exchangeany part of its pro rata share (as defined below) of such New Securities to be issued in the applicable Private Placement by giving written notice to the Company setting forth the quantity of New Securities to be purchased. A failure to provide the Company with written notice setting forth the quantity of New Securities to be purchased by any such Series E Holder in accordance with this Section 4 shall be deemed to be a waiver by such Series E Holder of its right to purchase any portion of its pro rata portion of such New Securities in the applicable Private Placement. For purposes of this Section 4, agree or obligate itself each Series E Holder’s “pro rata share” of New Securities to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, be issued in a transaction not involving a public offering, any each Private Placement shall be (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectivelyfraction, the “Offerees”) as set forth herein Each Offeree numerator of which shall have be the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of issued and outstanding ADSs Series E Preferred Stock held by such Series E Holder as of the Company calculated on a fully diluted basis to include (i) date hereof, and the total number denominator of ADSs subject to outstanding awards granted under stock plans of the Company and which shall be 561.3, times (ii) one third of the total number aggregate dollar amount of shares that could the New Securities to be issued upon in the exercise or conversion applicable Private Placement. For purposes of outstanding securities (clarification, once the “Basic Amount”), and (y) such additional portion Series E Holders have collectively been offered the right to purchase 33 1/3% of the Offered New Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified issued by the Company after the date hereof aggregating up to $16.9 million, the right of participation set forth in writing delivered to such Offeree (the “Offer”), which Offer by its terms this Section 4 shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt be of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied no further force or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offeringeffect.
Appears in 1 contract
Samples: Restructuring Agreement (Boston Life Sciences Inc /De)
Right of Participation. Subject to any statutory preemptive rights under applicable lawProvided that the Firm Units are sold in accordance with the terms of this Agreement, which Chardan shall have not been satisfied or waivedan irrevocable right of first refusal (the “Right of First Refusal”), until for a period of thirty six (36) months after the third (3rd) anniversary date of closing of the Closing DateOffering, to act as lead investment banker, lead book-runner, and/or lead placement agent with at least 33% of the economics, or in the case of where three investment banks are involved, with at least 25% of the economics, for each and every future public and private equity and debt offering (each, a “Subject Transaction”), during such thirty six (36) month period, of the Company, or any successor to or subsidiary of the Company, on terms and conditions customary to the Representative for such Subject Transactions. For the avoidance of any doubt, the Company shall not issueretain, sell engage or exchangesolicit any additional investment banker, agree book-runner, and/or placement agent in a Subject Transaction without the express written consent of Chardan. The Company shall notify Chardan of its intention to pursue a Subject Transaction, including the material terms thereof, by providing written notice thereof by registered mail or obligate itself overnight courier service addressed to issueChardan. If Chardan fails to exercise its Right of First Refusal with respect to any Subject Transaction within ten (10) Business Days after the mailing of such written notice, sell then Chardan shall have no further claim or exchange, or reserve or set aside for issuance, sale or exchangeright with respect to the Subject Transaction. The Representative may elect, in a transaction its sole and absolute discretion, not involving a public offering, to exercise its Right of First Refusal with respect to any (i) ADSs, (ii) Subject Transaction; provided that any such election by Chardan shall not adversely affect Chardan’s Right of First Refusal with respect to any other equity security Subject Transaction during the thirty six (36) month period agreed to above. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by Chardan, market conditions, the absence of a material adverse change to the Company’s business, including without limitationfinancial condition and prospects, preference shares, (iii) approval of Chardan’s internal committee and any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable conditions that Chardan may deem appropriate for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of issued and outstanding ADSs of the Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement transactions of such offering and consider in good faith an allocation of securities in such offeringnature.
Appears in 1 contract
Right of Participation. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rdi) anniversary For a period of 12 months following the Closing Date, the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, exchange or reserve or set aside for issuance, sale or exchange, in exchange (a transaction not involving a public offering, any (i) ADSs“Future Issuance”), (iiA) any shares of Common Stock, (B) any other equity security of the Company, including without limitation, preference shareslimitation shares of preferred stock, (iiiC) any debt security of the Company (other than debt with no equity feature) ), including without limitation, limitation any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (ivD) any security of the Company that is a combination of debt and equity, or (vE) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities sell (in the “case of public offerings, to the extent permitted by the SEC and other applicable laws, as reasonably determined by the Company upon consultation with counsel) the Offered Securities”Securities (as defined) to the Major Purchaser(s) Buyers (in all respects upon identical terms and each other person or entity that has such a right (each an “Offeree” conditions, including, without limitations, unit price and collectively, the “Offerees”interest rates) as set forth herein Each Offeree follows: The Company shall have the right offer to subscribe for: sell to each Buyer (x1) that portion of the Offered Securities as the number principal amount of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) Debentures acquired by such Offeree Buyer at the Closing bears to the total number principal amount of shares of issued and outstanding ADSs of Debentures acquired by all Buyers at the Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities Closing (the “Basic Amount”), and (y2) such additional portion of the Offered Securities as such Offeree Buyer shall indicate it will purchase should the other Offerees Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree Buyer (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following of 10 days from receipt of the offerOffer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.“
Appears in 1 contract
Samples: Securities Purchase Agreement (24/7 Real Media Inc)
Right of Participation. Subject to the exceptions described below, the Company and its Subsidiaries shall not negotiate or contract with any statutory preemptive rights under applicable lawparty for any equity financing (including any debt financing with an equity component) or issue any equity securities of the Company or any Subsidiary or securities convertible or exchangeable into or for equity securities of the Company or any Subsidiary (including debt securities with an equity component) in any form ("Future Offerings") during the period beginning on the date hereof and ending on, and including, the date which have not been satisfied or waived, until the third is two (3rd2) anniversary of years after the Closing Date, the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, any (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company it shall have first offered delivered to issue such securities the Investor or a designee appointed by the Investor written notice (which written notice shall not contain any material nonpublic information) of its intent to seek a Future Offering (the “Offered Securities”"Future Offering Notice") and providing the Investor an option to purchase an amount of securities to be issued in such Future Offering up to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: greater of (x) the product of (I) the securities to be issued in such Future Offering, multiplied by (II) the quotient of 10,600,000 (such number to be adjusted for any stock splits, stock dividends, stock combinations or other similar transactions involving the Common Stock that portion are effective at any time from and after 4:59 p.m., Eastern Time, on the date of this Agreement) divided by the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total aggregate number of shares of Common Stock and Class B Common Stock then issued and outstanding ADSs of the Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”excluding any treasury shares), and (y) the lesser of $5,300,000 of the securities to be issued in such additional Future Offering and such amount as would allow the Company to allocate the portion of such Future Offering to the Offered Securities as such Offeree shall indicate it will purchase should Other Investors in accordance with the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price separate redemption and on such other terms as shall have been specified exchange agreements being executed by the Company in writing delivered and the Other Investors on the date of this Agreement, without giving any effect to any amendments to such Offeree agreements after the date hereof, (such greater amount being referred to herein as the “Offer”"Aggregate Allocation"). The Investor can exercise its option to participate in a Future Offering by delivering written notice to the Company of such Investor's interest in participating within three (3) business days after receipt of a Future Offering Notice. The Company shall then have three (3) business days to provide each Investor electing to participate in a Future Offering with a written notice describing in detail the aggregate amount of dollars to be raised in the Future Offering, the Investor's Aggregate Allocation of the Future Offering, the time frame to completion of the Future Offering and a detailed description of the securities to be issued in the Future Offering. After receipt of such notice from the Company, the Investor shall have three business days to provide the Company with a notice confirming its participation in the Future Offering, which Offer by notice shall state the quantity of securities being offered in the Future Offering that such Investor will purchase, up to its terms Aggregate Percentage, and that number of securities it is willing to purchase in excess of its Aggregate Percentage. The Company shall remain open and irrevocable for a period ending on 4:30 p.m. on have 45 days thereafter to sell the second (2nd) Trading Day following receipt securities of the offerFuture Offering that the Investor did not elect to purchase, upon terms and conditions no more favorable to the purchasers thereof than specified in the Future Offering Notice. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in In the event the Company commences has not sold such securities of the Future Offering within such 45-day period, the Company shall not thereafter issue or sell such securities without first offering such securities to the Investor in the manner provided in this Section 4(e). The right of first offer set forth in this Section 4(e) shall not apply to (i) a loan from a commercial bank which does not have any equity feature other than the issuance of warrants to purchase, individually or in the aggregate, up to 250,000 shares of Common Stock (such number to be adjusted for any stock splits, stock dividends, stock combinations or other similar transactions involving the Common Stock that are effective at any time from and after 4:59 p.m., Eastern Time, on the date of this Agreement) at a fixed exercise price which is not less than the market price of the Common Stock at the time of issuance of such warrants, (ii) any transaction involving the Company's issuances of securities (A) as consideration in a merger or consolidation, (B) in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital) or (C) as consideration for the acquisition of a business, product, license or other assets by the Company, (iii) the issuance of Common Stock in an underwritten public offering by a nationally recognized investment bank, (iv) the issuance of its securities upon exercise or conversion of the Company's options, warrants or other convertible securities described in Schedule 3(c), (v) the grant of additional options or warrants, or the issuance of additional securities, it shall instruct its underwriter under any Company stock option plan, restricted stock plan or placement agent stock purchase plan for such offering to contact each Major Purchaser promptly following the first public announcement benefit of such offering the Company's employees, consultants or directors and consider in good faith an allocation (vi) the issuance by the Company of securities in such offeringexchange for the Settlement Notes. The Investor shall not be required to participate or exercise its right of first offer with respect to a particular Future Offering in order to exercise their right of first offer with respect to later Future Offerings.
Appears in 1 contract
Samples: Second Redemption and Exchange Agreement (Microstrategy Inc)
Right of Participation. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until Until the third (3rd) anniversary of the Closing DateCompany has completed a Qualified Public Offering, the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, any for cash or cash equivalents (i) ADSsany shares of Common Stock, (ii) any other equity security of the Company, including including, without limitation, preference sharesshares of Preferred Stock, (iii) any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, or (iv) any Debt Securities, unless in each such case the Company shall have first offered received an unconditional bona fide offer from a third party to issue purchase such securities (the “"Offered Securities”") and shall have offered to sell the Offered Securities to the Major Purchaser(s) and each other person or entity Investors as follows: the Company shall offer to sell to the Investors, as a group, that has such number of the Offered Securities so that the Investors shall retain their then existing equity percentage of the Company on a right (each an “Offeree” and collectivelyfully diluted basis. For purposes of making this calculation, the “Offerees”) as set forth herein Each Offeree Preferred Stock, and all other outstanding convertible instruments, and options and warrants to purchase common stock shall have be deemed to be converted or exercised, issued and outstanding shares of Common Stock of the right Company. The Company shall offer to subscribe for: sell to each Investor (xa) that portion of the Offered Securities as the aggregate number of ADSs shares of Common Stock equivalents, including the Preferred Stock, then held (including shares then by or issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by to such Offeree Investor bears to the total number of outstanding shares of issued and outstanding ADSs Common Stock of the Company, plus all shares of Common Stock issuable upon exercise of warrants or options or upon conversion of convertible securities of the Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company "Basic Amount"); and (iib) the total number of shares that could be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”), and (y) such any additional portion of the Offered Securities as such Offeree Investors shall indicate it will purchase purchase, but not to exceed the aggregate of all the Basic Amounts should the other Offerees Investors subscribe for less than their Basic Amounts (the “"Undersubscription Amount”"), at a price and on such the other terms as shall have been specified by the Company in writing delivered to such Offeree Investor (the “"Offer”"), which and the Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second of ten (2nd10) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offeringdays.
Appears in 1 contract
Samples: Stock Purchase Agreement (Powerwave Technologies Inc)
Right of Participation. Subject (a) The Company shall, prior to ---------------------- any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, proposed issuance by the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a transaction not involving a public offering, of any (i) ADSs, (ii) any other equity security of the Company, including without limitation, preference shares, (iii) any debt security of the Company its securities (other than debt securities with no equity feature), offer to the Purchaser by written notice the right, for a period of fifteen (15) including without limitationdays, any debt security to purchase for cash at an amount equal to the price or other consideration for which by its terms is convertible such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or exchangeable for any (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), the Purchaser will continue to maintain its same proportionate equity security ownership in the Company represented by the Preferred Shares and the Conversion Shares that it owns, if any, as of the Companydate of such notice (treating the Purchaser, (iv) any security for the purpose of such computation, as the holder of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any such debt security of the Company, unless in each case the Company shall have first offered to issue such securities (the “Offered Securities”) to the Major Purchaser(s) and each other person or entity that has such a right (each an “Offeree” and collectively, the “Offerees”) as set forth herein Each Offeree shall have the right to subscribe for: (x) that portion of the Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of issued Common Stock which would be issuable to the Purchaser upon conversion, exercise and outstanding ADSs exchange of all securities (including but not limited to the Preferred Shares) held by such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons); provided, however, that the participation rights of the Purchaser pursuant to this Section 6.02 shall not apply to securities issued (A) upon conversion of any of the Preferred Shares, (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 subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule -------- III as being outstanding on the date of this Agreement, (D) solely in --- consideration for the acquisition (whether by merger or otherwise) by the Company calculated on or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a fully diluted basis firm commitment public offering. The Company's written notice to include (i) the total number of ADSs subject Purchaser shall describe the securities proposed to outstanding awards granted under stock plans of be issued by the Company and specify the number, price and payment terms. (ii) The number of shares that the Purchaser is entitled to purchase under this Section 6.02 shall be referred to as its "Pro Rata Share." The total number of shares that could the Purchaser is entitled to purchase under this Section 6.02 shall be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”referred to as "Offered Shares"), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the second (2nd) Trading Day following receipt of the offer. Subject to any statutory preemptive rights under applicable law, which have not been satisfied or waived, until the third (3rd) anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Bailey Co L P)
