Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each case, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; provided, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the Option Rights (“Unexercised Options”) as a result of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company; (b) any Equity Securities issued or issuable pursuant to the exercise of any convertible securities outstanding as of the date of this Agreement; and any Equity Securities issued pursuant to any such convertible securities granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement); (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (e) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; (g) any Equity Securities issued pursuant to a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the Company; (h) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board of Directors provided that such transaction is not substantially for equity financing purposes; and (i) any Equity Securities issued pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note Purchase Agreement of even date herewith.
Appears in 2 contracts
Sources: Investor Rights Agreement (Esperion Therapeutics, Inc.), Investor Rights Agreement (Esperion Therapeutics, Inc.)
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each case, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; provided, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the Option Rights (“Unexercised Options”) as a result of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company;
(b) any Equity Securities stock issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 4.6 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination that is approved by the Board of DirectorsDirectors and entered into for primarily non-equity financing purposes;
(ed) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company;
(e) any Equity Securities that, with the unanimous approval of the Board of Directors, are not offered to any existing stockholder of the Company;
(f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, entered into for primarily non-equity financing purposes;
(g) any Equity Securities issued pursuant to a firmly underwritten public offering pursuant third party service providers in exchange for or as partial consideration for services rendered to an effective registration statement under the Securities Act covering Company as approved by the offer and sale Board of Common Stock for the account of the CompanyDirectors;
(h) any Equity Securities that are issued in connection with strategic transactions involving by the Company and other entitiespursuant to a bona fide, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board of Directors provided that such transaction is not substantially for equity financing purposesfirmly underwritten public offering; and
(i) any Equity Securities issued by the Company pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note the terms of Section 2.3 of the Purchase Agreement of even date herewithAgreement.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Stitch Fix, Inc.)
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) 25,000,000 shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or (the “Base Option Pool”) that is approved by the Company’s Board of Directors, issued after the original issue date of the Series A Preferred pursuant to such options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each case, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to to, the Company or any subsidiary, subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board for the primary purpose of Directorssoliciting or retaining their services (individually, an “Equity Incentive” and collectively, “Equity Incentives”); provided, howeverprovided further, that at for purposes of the Base Option Pool any given point in time, such amount shall be increased to reflect any shares of unvested Common Stock (i) not issued repurchased by the Company pursuant to the Option Rights terms of a restricted stock purchase agreement under which such Equity Incentive was issued and any Equity Incentive which expires unexercised (“Unexercised Options”including, without limitation, Equity Incentives outstanding on the date hereof) as a result of may again be sold or granted under this Section 4.7(a) without counting another time against the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company;limitations set forth above.
(b) any Equity Securities stock issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to .to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, with or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors;
(ed) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company;
(e) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock;
(f) any Equity Securities up to five percent (5%) of the fully diluted capitalization of the Company ( defined to include all issued and outstanding shares of capital stock, all shares issued or issuable upon exercise on conversion of all convertible securities, options, wan-ants, or other purchase . rights and all shares of capital stock reserved for future issuance) issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, arrangement or debt financing from a bank or similar financial institution, or lending institution approved by the Board of Directors;
(g) any Equity Securities issued pursuant to a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the Company;
(h) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology license, transfer or development arrangements; provided that , in any case the issuance terms of shares therein has been which are approved by the Board of Directors;
(g) any Equity Securities that are issued by the Company in a public offering in which all outstanding shares of Preferred Stock will convert into shares of Common Stock under the terms of the Company’s Board Certificate of Directors provided incorporation, as amended from time to time;
(h) any Equity Securities issued by the Company pursuant to the terms of Section 1 of the Purchase Agreement or the Restated LSA and all warrants exercisable for shares of Series A Preferred and Series B Preferred (and the shares of Series A Preferred and Series B Preferred, as applicable, issued upon exercise of such warrants and all shares of Common Stock issued upon conversion thereof) that such transaction is not substantially for equity financing purposesare outstanding on the date hereof; and
(i) any Equity Securities issued pursuant to Investec in connection with loans that certain Convertible Promissory Note issued may be provided to Pfizerthe Company by Investec, Inc. pursuant to provided that certain Note Purchase Agreement the terms of even date herewithsuch loans and such issuances of Equity Securities are approved by the Board of Directors.
Appears in 2 contracts
Sources: Investor Rights Agreement, Voting Agreement, Right of First Refusal and Co Sale Agreement (Sonim Technologies Inc), Investor Rights Agreement, Voting Agreement, Right of First Refusal and Co Sale Agreement (Sonim Technologies Inc)
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each caseoptions, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) issued warrants or to be other rights issued after the date hereof of this Agreement to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that (the “Plans”) when (i) such Plans have been approved by the Board of Directors on or prior to the date hereof, or (ii) such Plans are approved by the Board of Directors; providedDirectors after the date hereof, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to including the Option Rights (“Unexercised Options”) as a result affirmative approval of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the CompanyNAV Director;
(b) any Any Equity Securities issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and any Equity Securities issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 4.6 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a bona fide merger, consolidation, acquisition acquisition, strategic alliance or similar business combination combination, provided that such transaction is not primarily for equity financing purposes and is approved by the Board of Directors, which shall include, in the case of any such issuance to an Affiliate or Related Person of the Company, approval by the NAV Director;
(ed) any Equity Securities issued in connection with any stock split, split or stock dividend or recapitalization by the Company;
(fe) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution institution; provided that such transaction is not primarily for equity financing purposes, and is approved by the Board of Directors, which shall include, in the case of any such issuance to an Affiliate or Related Person of the Company, approval by the NAV Director;
(f) any Equity Securities that are issued by the Company pursuant to a registration statement relating to a firm commitment underwritten offering filed under the Securities Act;
(g) any Equity Securities issued pursuant to a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account Section 2 of the CompanyPurchase Agreement;
(h) any Equity Securities issued in connection with bona fide strategic transactions involving the Company and other entities, including, without limitation including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board of Directors provided that such transaction is not substantially primarily for equity financing purposespurposes and is approved by the Board of Directors, which shall include, in the case of any such issuance to an Affiliate or Related Person of the Company, approval by the NAV Director ; and
(i) any Equity Securities issued pursuant to suppliers or third party service providers in connection with the provision of goods or service; provided that certain Convertible Promissory Note issued such transaction is not primarily for equity financing purposes and is approved by the Board of Directors, which shall include, in the case of any such issuance to Pfizeran Affiliate or Related Person of the Company, Inc. pursuant to that certain Note Purchase Agreement of even date herewithapproval by the NAV Director.
Appears in 2 contracts
Sources: Investor Rights Agreement (HealthWarehouse.com, Inc.), Investor Rights Agreement (New Atlantic Venture Fund Iii L P)
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate shares of two million three hundred thousand Common Stock issued upon conversion of the Preferred Stock;
(2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000b) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each caseoptions, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) warrants or other rights issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; provided, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the Option Rights (“Unexercised Options”) as a result of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the CompanyBoard;
(bc) any Equity Securities stock issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition acquisition, strategic alliance or similar business combination approved by the Board of DirectorsBoard;
(e) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company;
(f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of DirectorsBoard;
(g) any Equity Securities issued pursuant to a firmly underwritten public offering pursuant third-party service providers in exchange for or as partial consideration for services rendered to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the Company;
(h) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act;
(i) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board of Directors provided that such transaction is not substantially for equity financing purposes; andBoard;
(ij) any Equity Securities issued by the Company pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note the terms of Section 2.3 of the Purchase Agreement of even date herewithAgreement.
Appears in 2 contracts
Sources: Investor Rights Agreement (Snowflake Inc.), Investor Rights Agreement (Snowflake Inc.)
Excluded Securities. The rights right of first refusal established by this Section 4 Sections 9.1, 9.2 and 9.3 shall have no application to any of the following Equity Securities:
(a) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock (and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each caseoptions, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereofwarrants or other rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; provided, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the Option Rights (“Unexercised Options”) as a result of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company;or
(b) any Equity Securities stock issued or issuable pursuant to the exercise of any convertible securities rights, agreements, options or warrants outstanding as of the date of this Agreement; , and any Equity Securities stock issued pursuant to any such convertible securities rights, agreements, options or warrants granted after the date of this Agreement, so long as Agreement provided that the rights right of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with respect 9 did not apply to the initial sale or grant by the Company of such rights rights, agreements, options or agreementswarrants;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by whereby the Board stockholders of Directorsthe Company will own more than fifty percent (50%) of the voting power of the combined entity;
(ed) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company;
(e) shares of Common Stock issued upon conversion of any Equity Securities;
(f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors;; and
(g) any Equity Securities issued pursuant to a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account shares of the Company;
(h) any Equity Securities 's Common Stock or Preferred Stock issued in connection with strategic transactions involving the Company and other entitiesany third party, including, without limitation including (i) joint ventures, manufacturing, marketing marketing, corporate partnering or distribution arrangements arrangements, or (ii) technology transfer transfer, research or development arrangements; provided that such strategic transactions and the issuance of shares therein therein, has been approved by the Company’s 's Board of Directors provided that Directors. Notwithstanding the foregoing, during the term of the right of first refusal under this Article 9, if at any time or from time to time after the date of this Agreement the Company issues, pursuant to one or more transactions described in Sections 9.6 (a) through (g), shares of its Common Stock (whether a new issuance of Common Stock, or Common Stock issued upon the exercise of an Equity Security, option, warrant or conversion or exchange right or other similar right), and if upon such transaction is not substantially for equity financing purposes; and
issuance the number of Shares purchased pursuant to Sections 2.1 and 2.2 hereof, plus the number of shares of Common Stock (i) and the number of shares of Common Stock issued or issuable upon the conversion of any Equity Securities issued Securities) previously purchased pursuant to that certain Convertible Promissory Note issued to Pfizerthis Article 9 (collectively, Inc. pursuant to that certain Note Purchase Agreement of even date herewith.the
Appears in 2 contracts
Sources: Stock Purchase Agreement (Cytel Corp/De), Stock Purchase Agreement (Monsanto Co)
Excluded Securities. The rights of first refusal offer established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each caseoptions, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) warrants or other rights issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; providedBoard, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the Option Rights (“Unexercised Options”) as a result including one of the termination Preferred Directors, and not opposed by any of the Preferred Directors attending or cancellation of such Unexercised Options or (ii) reacquired by participating in the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the CompanyBoard meeting;
(b) any Equity Securities stock issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 4.6 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition acquisition, strategic alliance or similar business combination approved by the Board, including one of the Preferred Directors, and not opposed by any of the Preferred Directors attending or participating in the Board of Directorsmeeting;
(ed) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company;
(fe) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, arrangement or debt financing from a bank or similar financial or lending institution approved by the Board, including one of the Preferred Directors, and not opposed by any of the Preferred Directors attending or participating in the Board of Directorsmeeting;
(gf) any Equity Securities issued pursuant to a firmly underwritten public offering pursuant third party service providers in exchange for or as partial consideration for services rendered to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the Company;
(hg) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board, including one of the Preferred Directors, and not opposed by any of the Preferred Directors attending or participating in the Board of Directors provided meeting;
(h) any Equity Securities issued by the Company that such transaction is not substantially for equity financing purposes; andwere unanimously approved by the Board;
(i) any Equity Securities that are issued by the Company pursuant to that certain Convertible Promissory Note a registration statement filed under the Securities Act; and
(j) any Equity Securities issued to Pfizer, Inc. by the Company pursuant to that certain Note the terms of Section 2.3 of the Purchase Agreement of even date herewithAgreement.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Ruckus Wireless Inc)
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each caseoptions, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) issued warrants or to be other rights issued after the date hereof of this Agreement to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that (the “Plans”) when (i) such Plans have been approved by the Board of Directors on or prior to the date hereof, or (ii) such Plans are approved by the Board of Directors; providedDirectors after the date hereof, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to including the Option Rights (“Unexercised Options”) as a result affirmative approval of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the CompanyPreferred Director;
(b) any Any Equity Securities issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and any Equity Securities issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 4.6 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a bona fide merger, consolidation, acquisition acquisition, strategic alliance or similar business combination combination, provided that such transaction is not primarily for equity financing purposes and is approved by the Board of Directors, which shall include, in the case of any such issuance to an Affiliate or Related Person of the Company, approval by the Preferred Director;
(ed) any Equity Securities issued in connection with any stock split, split or stock dividend or recapitalization by the Company;; .
(fe) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution institution; provided that such transaction is not primarily for equity financing purposes, and is approved by the Board of Directors, which shall include, in the case of any such issuance to an Affiliate or Related Person of the Company, approval by the Preferred Director;
(f) any Equity Securities that are issued by the Company pursuant to a registration statement relating to a firm commitment underwritten offering filed under the Securities Act;
(g) any Equity Securities issued pursuant to a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account Section 2 of the CompanyPurchase Agreement;
(h) any Equity Securities issued in connection with bona fide strategic transactions involving the Company and other entities, including, without limitation including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board of Directors provided that such transaction is not substantially primarily for equity financing purposespurposes and is approved by the Board of Directors, which shall include, in the case of any such issuance to an Affiliate or Related Person of the Company, approval by the Preferred Director ; and
(i) any Equity Securities issued pursuant to suppliers or third party service providers in connection with the provision of goods or service; provided that certain Convertible Promissory Note issued such transaction is not primarily for equity financing purposes and is approved by the Board of Directors, which shall include, in the case of any such issuance to Pfizeran Affiliate or Related Person of the Company, Inc. pursuant to that certain Note Purchase Agreement of even date herewithapproval by the Preferred Director.
Appears in 1 contract
Sources: Investor Rights Agreement (HealthWarehouse.com, Inc.)
Excluded Securities. The preemptive rights of first refusal established by this Section 4 shall have no application to the issuance of any of the following Equity Securities:
(a) up to an aggregate shares of two million three hundred thousand Common Stock issued upon conversion of shares of the Company’s Preferred Stock;
(2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000b) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each caseoptions, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) warrants or other rights issued or to be issued after the date hereof Series E Original Issue Date (as defined in the Company’s Certificate of Incorporation) to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, subsidiary for the primary purpose of soliciting or retaining their services and pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; provided, however, that including the affirmative vote of at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the Option Rights (“Unexercised Options”) as a result least three of the termination or cancellation of such Unexercised Options or (ii) reacquired representatives designated by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the CompanyPreferred Stock;
(bc) any Equity Securities stock issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the preemptive rights of first refusal established by this Section 4 were complied with, waived, with or were inapplicable pursuant to any provision of this Section 4.7 4.6 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than primarily cash pursuant to a merger, consolidation, acquisition acquisition, strategic transaction (including joint ventures, manufacturing, marketing or distribution arrangements or technology transfer or development arrangements) or similar business combination provided that the issuance of shares in connection therewith has been approved by the Company’s Board of Directors;, including the affirmative vote of at least three of the representatives designated by the Preferred Stock.
(e) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company;
(f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, including the affirmative vote of at least three of the representatives designated by the Preferred Stock;
(f) shares of Common Stock issued in connection with any stock split, stock dividend, reclassification or similar non-economic event by the Company;
(g) any Equity Securities that are issued by the Company pursuant to a firmly underwritten public offering pursuant to an effective registration statement filed under the Securities Act covering the offer and sale of Common Stock for the account of the CompanyAct;
(h) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein in connection therewith has been approved by the Company’s Board of Directors provided that such transaction is not substantially for equity financing purposes; and
(i) any Equity Securities issued pursuant to that certain Convertible Promissory Note issued to PfizerDirectors, Inc. pursuant to that certain Note Purchase Agreement including the affirmative vote of even date herewithat least three of the representatives designated by the Preferred Stock.
Appears in 1 contract
Sources: Investor Rights Agreement (Rally Software Development Corp)
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or options, warrants or other Common Stock purchase rights for such amount of 23,877,415 shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each case, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such shares after the date hereofof this Agreement) of Common Stock (the “Option Pool”) (as such Option Pool may be increased from time to time by approval of the Board of Directors and the holders of at least sixty-six and two-thirds percent (66 2/3%) of the outstanding shares of Preferred Stock as required by the Company’s Certificate of Incorporation, as such may be amended from time to time) issued to employees, officers or directors of, or consultants or advisors to be the Company or any subsidiary, pursuant to the Company’s 2013 Equity Incentive Plan (or any similar successor stock purchase or stock option plans adopted by the Company), or any additional shares of Common Stock issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are unanimously approved by the Board of Directors; provided, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the Option Rights (“Unexercised Options”) as a result of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company;
(b) any Equity Securities stock issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, with or were inapplicable pursuant to any provision of this Section 4.7 4.6 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board of Directors, including a majority of the directors appointed by the holders of the Shares;
(ed) any Equity Securities shares of Common Stock issued in connection with any stock split, split or stock dividend or recapitalization by the Company;
(e) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock;
(f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, including a majority of the directors appointed by the holders of the Shares, and provided that the issuance of such shares is primarily for purposes other than the raising of additional capital through an equity financing;
(g) any Equity Securities that are issued by the Company pursuant to a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the CompanyQualified IPO;
(h) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board of Directors and provided that the issuance of such transaction shares is not substantially primarily for purposes other than the raising of additional capital through an equity financing purposesfinancing; and
(i) any Equity Securities issued pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note the Purchase Agreement of even date herewithAgreement.
Appears in 1 contract
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate shares of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock common stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights options, warrants or other rights (in each case, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereoflike) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to to, the Company or any subsidiary, subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; provided, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the Option Rights (“Unexercised Options”) as a result of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company;
(b) any Equity Securities stock issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board of Directors;
(ed) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company;
(e) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock;
(f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors;
(g) any Equity Securities that are issued by the Company pursuant to a firmly underwritten public offering pursuant to an effective registration statement filed under the Securities Act covering the offer and sale of Common Stock for the account of the CompanyAct;
(h) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board of Directors provided that such transaction is not substantially for equity financing purposesDirectors; and
(i) any Equity Securities issued by the Company pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note the terms of the Purchase Agreement of even date herewithAgreement.
Appears in 1 contract
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each case, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; provided, however, that at Directors or any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not stock issued or issuable pursuant to the Option Rights (“Unexercised Options”) as a result of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Companythereto;
(b) any Equity Securities stock issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors;
(ed) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company;
(fe) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors;
(gf) any Equity Securities that are issued by the Company pursuant to a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the Company;Initial Offering; and
(hg) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided provided, that the issuance of shares therein has been approved by the Company’s Board of Directors provided Directors; and provided, further, that such transaction is not substantially for equity financing purposes; and
(i) any Equity Securities issued pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note Purchase Agreement of even date herewith.
Appears in 1 contract
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate shares of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock common stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights options, warrants or other rights (in each case, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereoflike) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to to, the Company or any subsidiary, subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; provided, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the Option Rights (“Unexercised Options”) as a result of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company;
(b) any Equity Securities stock issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board of Directors;
(ed) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company;
(e) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock;
(f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors;
(g) any Equity Securities that are issued by the Company pursuant to a firmly underwritten public offering pursuant to an effective registration statement filed under the Securities Act covering the offer and sale of Common Stock for the account of the CompanyAct;
(h) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board of Directors provided that such transaction is not substantially for equity financing purposesDirectors; and
(i) any Equity Securities issued by the Company pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note the terms of the Purchase Agreement of even date herewithAgreement.
Appears in 1 contract
Excluded Securities. The preemptive rights of first refusal established by this Section 4 4.4 shall have no application not apply to any of the following Equity Securities:
(a1) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each caseoptions, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) warrants or other rights issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiaryCompany, pursuant to stock purchase share purchase, equity incentive plan, or stock share option plans or other arrangements that are approved by the Board board of Directors; provided, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the Option Rights (“Unexercised Options”) as a result directors of the termination or cancellation Company, in each case, which are for compensatory purposes and not for the purposes of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services providing financing to the Company;
(b2) any Equity Securities issued or issuable pursuant to the conversion or exercise of the Notes and Warrants;
(3) Equity Securities issued pursuant to the conversion or exercise of any convertible securities options, warrants or other rights which are outstanding as of the date of this Agreement; and any Equity Securities hereof;
(4) shares issued pursuant to any such convertible securities rights, agreements, options or warrants granted after the date of this AgreementClosing, so long as the preemptive rights of first refusal established by this Section 4 4.4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 4.4 with respect to the initial sale or grant by the Company of such rights rights, agreements, options or agreementswarrants;
(c5) any Equity Securities issued in connection with pursuant to an acquisition by the Second ClosingCompany of the capital stock or assets of another company (including by way of merger or consolidation), Third Closingincluding, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in without limitation, the Purchase Agreement);
(d) any issuance of Equity Securities issued for consideration other than cash pursuant to a mergerthe A Block APA, consolidationprovided, such acquisition or similar business combination is approved by the Board board of Directors;directors of the Company; and
(e6) any Equity Securities issued in connection with any stock share split, stock share dividend on, reclassification or recapitalization by or similar event of the Company;
(f) any outstanding Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors;
(g) any Equity Securities issued pursuant to a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the Company;
(h) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board of Directors provided that such transaction is not substantially for equity financing purposes; and
(i) any Equity Securities issued pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note Purchase Agreement of even date herewith.
Appears in 1 contract
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000A) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock capital stock (and/or options, warrants or other Common Stock capital stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each caseoptions, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereofwarrants or other rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; provided, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock ;
(iB) not capital stock issued pursuant to the Option Rights (“Unexercised Options”) any rights or agreements outstanding as a result of the termination or cancellation date of such Unexercised Options or (ii) reacquired by the Company from employeesthis Agreement, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company;
(b) any Equity Securities issued or issuable pursuant to the exercise of any convertible securities options and warrants outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as provided that the rights of first refusal established by this Section 4 were complied with, waived, applied (or were inapplicable pursuant to any provision of this Section 4.7 4.6) with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(dC) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directorscombination;
(eD) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company;
(fE) shares of Common Stock issued upon conversion of the Shares;
(F) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directorsprovided that such transactions are for primarily nonequity financing purposes;
(gG) any Equity Securities that are issued by the Company pursuant to a firmly underwritten public offering pursuant to an effective registration statement filed under the Securities Act covering the offer and sale of Common Stock for the account Act; and
(H) shares of the Company;
(h) any Equity Securities 's Common Stock or Preferred Stock issued in connection with strategic transactions involving the Company and other entities, including, without limitation including (iA) joint ventures, manufacturing, marketing or distribution arrangements or (iiB) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board of Directors provided that such transaction is not substantially for equity financing purposes; and
(i) any Equity Securities issued pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note Purchase Agreement of even date herewith.transfer
Appears in 1 contract
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate amount of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) 400,000 shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock (and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each caseoptions, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereofwarrants or other rights) issued or to be issued after the date hereof issuable to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors; provided, howeverand upon reasonable justification by the Company, that at any given point in time, such amount shall an additional 200,000 shares available to be increased to reflect any shares of Common Stock (iissued under this Section 4.6(a) not issued pursuant to the Option Rights (“Unexercised Options”) as a result upon consent of the termination or cancellation Board of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser Directors of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company;
(b) any Equity Securities stock issued or issuable pursuant to any rights or agreements outstanding as of the exercise date of any convertible securities this Agreement, options and warrants outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to any such convertible securities rights, agreements, options or warrants granted after the date of this Agreement, so long as provided that the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 applied with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board shares of Directors;
(e) any Equity Securities Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company;
(fd) shares of Common Stock issued upon conversion of the Preferred Stock;
(e) any Equity Securities that are issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors;
(g) any Equity Securities issued Company pursuant to a firmly underwritten public offering pursuant Qualified Public Offering; and
(f) shares of Equity Securities (not to an effective registration statement under exceed 5% of the Securities Act covering the offer and sale of Common Stock for the account of the Company;
(h, determined on a fully diluted, as converted basis) any Equity Securities issued in connection with a strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing alliance with a pharmaceutical or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been biotechnology company approved unanimously by the Company’s 's Board of Directors provided that such transaction is not substantially for equity financing purposes; and
(i) any Equity Securities issued pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note Purchase Agreement of even date herewithDirectors.
Appears in 1 contract
Sources: Investor Rights Agreement (Arena Pharmaceuticals Inc)
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up Up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) 2,496,438 shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock (and/or options, warrants or other purchase rights to purchase Common Stock, provided that any such options, warrants or other purchase rights that expire or terminate unexercised or any restricted Common Stock repurchased by the Company at cost shall not be counted toward such maximum number unless and until such shares are regranted as new stock grants or as new options, warrants or other purchase rights for such amount of shares (to purchase Common Stock) approved by the “Option Rights”) Board and the Common Stock issued pursuant to such Option Rights (in each case, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to the Company’s 2007 Stock Option Plan or such other stock purchase or stock option plans plan or other arrangements that are approved by the Board of Directors; provided, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to including the Option Rights (“Unexercised Options”) as a result affirmative approval of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the CompanyPreferred Stock Designees);
(b) any Equity Securities issued or issuable pursuant to the exercise of any convertible securities outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to any such rights or agreements, options, warrants or convertible securities granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, with or were inapplicable pursuant to any provision of this Section 4.7 4.6 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board (including the affirmative vote of Directorsthe Preferred Stock Designees);
(ed) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company;
(e) shares of Common Stock issued upon conversion of shares of the Company’s preferred stock;
(f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board (including the affirmative vote of Directorsthe Preferred Stock Designees);
(g) any Equity Securities that are issued by the Company pursuant to a firmly underwritten public offering pursuant to an effective registration statement filed under the Securities Act covering the offer and sale of Common Stock for the account of the CompanyAct;
(h) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board (including the affirmative vote of Directors provided that such transaction is not substantially for equity financing purposesthe Preferred Stock Designees); and
(i) any Equity Securities Shares of Preferred Stock issued pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note the Purchase Agreement of even date herewithAgreements.
Appears in 1 contract
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each caseoptions, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) warrants or other rights issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; provided, however, that at any given point in time, such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the Option Rights (“Unexercised Options”) as a result of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company;
(b) any Equity Securities issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and ;
(c) any Equity Securities issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, with or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board of DirectorsDirectors following the date of this Agreement and provided such issuances are primarily for other than equity financing purposes;
(e) any Equity Securities issued in connection with the settlement of disputed amount approved by the Board of Directors following the date of this Agreement;
(f) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the CompanyCompany approved by the Board of Directors following the date of this Agreement;
(fg) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock or any other series of preferred stock;
(h) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution institution, the primary purpose of which is other than to obtain financing for the Company through the issuance of equity securities, approved by the Board of Directors;
(gi) any Equity Securities that are issued by the Company pursuant to a firmly underwritten public offering pursuant to an effective registration statement filed under the Securities Act covering the offer and sale of Common Stock for the account of the CompanyAct;
(hj) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangementsarrangements in any event entered into primarily for non-capital raising purposes; provided that the issuance of shares therein has been approved by the Company’s Board of Directors provided that such transaction is not substantially for equity financing purposesDirectors; andor
(ik) any Equity Securities issued the Notes issuable by the Company pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note Purchase the terms of the Loan Facility Agreement (and the Series E Stock issuable upon conversion of even date herewiththe Notes and the Common Stock issuable upon conversion of the Series E Stock).
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Sources: Investor Rights Agreement (CymaBay Therapeutics, Inc.)
Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) up to an aggregate of two million three hundred thousand (2,300,000) shares, plus up to an additional one million two hundred thousand (1,200,000) shares pursuant to Section 7.3 of the Purchase Agreement, of Common Stock and/or options, warrants or other Common Stock purchase rights for such amount of shares (the “Option Rights”) and the Common Stock issued pursuant to such Option Rights (in each caseoptions, as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) warrants or other rights issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; provided, however, that at any given point in time, such amount shall be increased each case where the primary purpose was not to reflect any shares of Common Stock (i) not issued pursuant to the Option Rights (“Unexercised Options”) as a result of the termination or cancellation of such Unexercised Options or (ii) reacquired by the Company from employees, officers, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Companyraise additional equity capital;
(b) any Equity Securities stock issued or issuable pursuant to the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and any Equity Securities stock issued pursuant to any such convertible securities rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, with or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued in connection with the Second Closing, Third Closing, Additional Closing or Optional Fourth Tranche Closing (as each term is defined in the Purchase Agreement);
(d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board of Directorscombination;
(ed) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company;
(e) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock;
(f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors;institution; and
(g) any Equity Securities issued pursuant to a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the Company;
(h) any Equity Securities equity securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided however, that the issuance of shares pursuant to (i) or (ii) above therein has been approved by the Company’s Board directors of Directors provided the Company elected by the Preferred and that such transaction is not substantially primarily for equity financing purposes; and
(i) any Equity Securities issued pursuant to that certain Convertible Promissory Note issued to Pfizer, Inc. pursuant to that certain Note Purchase Agreement of even date herewith.
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