Grant of Preemptive Rights. (a) If the Company issues New Securities to any Person (such Person, an "Acquiring Person") at any time after the date hereof, then the Company hereby grants each Stockholder and/or its respective Affiliates (collectively, the "Preemptive Rights Holders") preemptive rights to purchase a pro rata portion of such New Securities at the same price and on the same terms and conditions offered to such Acquiring Person. In the event (and on each occasion) that the Company shall decide to undertake an issuance of New Securities to an Acquiring Person at any time after the date hereof, the Company will give all Preemptive Rights Holders written notice (a "Preemptive Notice") of the Company's decision, describing the type of New Securities and the terms upon which the Company has decided to issue the New Securities (including, without limitation, the expected timing of such issuance which will in no event exceed 60 days after the date of the Preemptive Notice). (b) Each of the Preemptive Rights Holders shall have 10 business days from the date on which it receives a Preemptive Notice to agree to purchase its pro rata portion of such New Securities for the applicable price and upon the same terms specified in the Preemptive Notice by giving written notice to the Company. Each Preemptive Rights Holder shall have the option to purchase less than all of its pro rata portion. If, in connection with such a proposed issuance of New Securities, any Preemptive Rights Holder shall for any reason fail or refuse to give such written notice to the Company within such 10 business day period, such Preemptive Rights Holder shall, for all purposes of this Section 6, be deemed to have refused (in that particular instance only) to purchase any of such New Securities and to have waived (in that particular instance only) all of its rights under this Section 6 to purchase any of such New Securities. Upon expiration of the offering periods described in this Section 6, the Company shall be entitled to sell such New Securities which the Preemptive Rights Holders have elected not to purchase during the 120 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Preemptive Rights Holders in the Preemptive Notice. Any New Securities offered or sold by the Company after such 120-day period must be reoffered to the applicable Preemptive Rights Holders. The rights granted by this Section 6 shall terminate upon the consummation of a Qualified Public Offering. (c) Notwithstanding anything herein to the contrary, no Preemptive Rights Holder has any preemptive rights with respect to any New Securities issued in connection with (i) debt financing, except that if the Company issues debt and equity securities together (i.e., as a "strip"), then such debt and equity securities shall together be deemed to be New Securities, in which case the Preemptive Rights Holders shall be entitled to purchase their pro rata portion of both the debt and the equity securities being offered by the Company; provided, however, that in such case, the Preemptive Rights Holder must elect to purchase its pro rata portion of both the debt and the equity securities of the Company issued in such financing, (ii) the exercise of Options, Warrants or other rights or the conversion or exchange of securities of the Company, (iii) the receipt of paid-in-kind dividends, provided that the underlying securities were issued in compliance with this Section 6, (iv) a stock split, stock dividend, stock distribution or recapitalization in which all similarly situated Stockholders are treated in a similar manner, (v) issuances in any Public Offering, (vi) issuances to the directors, officers or employees of the Company or any Subsidiary of the Company pursuant to a benefit plan or similar arrangement or as an inducement to hire a director, officer or employee of the Company or any Subsidiary of the Company, provided that such issuances are approved by the Board, (vi) issuances to customers, suppliers or lenders of the Company, provided that such issuances are approved by the Board, or (vii) issuances as consideration in connection with mergers, acquisitions of securities or assets by the Company or its Subsidiaries or other business combination transactions involving the Company or its Subsidiaries, provided that such issuances are approved by the Board. As used in this Section 6, the term "pro rata portion" with respect to a Preemptive Rights Holder shall mean the aggregate number of New Securities to be issued multiplied by a fraction, the numerator of which is the number of Shares held at such time by such Preemptive Rights Holder and the denominator of which is the aggregate number of Shares on a fully diluted, as converted, basis.
Appears in 1 contract
Grant of Preemptive Rights. (a) If the Company issues New Securities to any Person (such Person, Person an "Acquiring Person") at any a subscription, offering, exercise or conversion price lower than either (x) the Fair Market Value (as defined in paragraph 5(a)) of such New Securities at the time after such New Securities are issued or (y) the date hereofprice per Unit Common Share as set forth in Section 2.04 of the Purchase Agreement (equitably adjusted for stock splits, stock dividends, stock combinations and similar events), then the Company hereby grants each Rollover Stockholder and each Investor and/or its respective Affiliates, as the case may be, so long as such Investor and/or its Affiliates beneficially owns 35% or more of the shares of Common Stock issued to such Investor or its Affiliates on the date hereof (collectivelycollectively with the Rollover Stockholders, the "Preemptive Rights Right A Holders") ), preemptive rights to purchase a pro rata portion of such New Securities at the same price and on the same terms and conditions offered to such Acquiring Person. In the event (and on each occasion) that the Company shall decide to undertake an issuance of New Securities to an Acquiring Person at any time after the date hereofPerson, the Company will give all Preemptive Rights Right A Holders written notice (a "Preemptive Notice") of the Company's decision, describing the type of New Securities and the terms upon which the Company has decided to issue the New Securities (including, without limitation, the expected timing of such issuance which will in no event exceed 60 days after the date of the Preemptive Notice).
(b) If the Company issues New Securities to the Principal Investor or its Affiliates, which issuance (including any prior issuance with respect to which such Unit Purchaser or Co-Invest Purchaser had no preemptive rights hereunder) would either otherwise entitle a Unit Purchaser or Co-Invest Purchaser to purchase at least $1.5 million of New Securities under this paragraph 7(b) or dilute (calculated on a fully diluted basis) the percentage of beneficial ownership of the Company's Common Stock by a Unit Purchaser or Co-Invest Purchaser as of the issue date of the Common Stock by 10% or more, then the Company hereby grants each Unit Purchaser, Co-Invest Purchaser and its respective Affiliates (the "Right B Holders" and collectively with the Right A Holders, the "Rights Holders"), preemptive rights to purchase a pro rata portion of such New Securities at the same price and on the same terms and conditions offered to the Principal Investor or its Affiliates, as applicable. In the event (and on each occasion) that the Company shall decide to undertake an issuance of New Securities to the Principal Investor or its Affiliates, the Company will give all Right B Holders a Preemptive Notice of the Company's decision, describing the type of New Securities and the terms upon which the Company has decided to issue the New Securities (including, without limitation, the expected timing of such issuance which will in no event exceed 60 days after the date of the Preemptive Notice).
(c) Each of the Preemptive Rights Holders Holders, as applicable, shall have 10 20 business days from the date on which it receives a Preemptive Notice to agree to purchase its pro rata portion of such New Securities for the applicable price and upon the same terms specified in the Preemptive Notice by giving written notice to the Company. Each Preemptive Rights Holder Holder, as applicable, shall have the option to purchase less than all of its pro rata portion. If, in connection with such a proposed issuance of New Securities, any Preemptive Rights Holder Holders shall for any reason fail or refuse to give such written notice to the Company within such 10 business 20-day period, such Preemptive Rights Holder OSI Stockholder shall, for all purposes of this Section 6paragraph 7, be deemed to have refused (in that particular instance only) to purchase any of such New Securities and to have waived (in that particular instance only) all of its rights under this Section 6 paragraph 7 to purchase any of such New Securities. Upon expiration of the offering periods described in this Section 6paragraph 7, the Company shall be entitled to sell such New Securities and other securities which the Preemptive Rights Holders Holders, as applicable, have elected not to purchase during the 120 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Preemptive applicable Rights Holders in the Preemptive NoticeHolders. Any New Securities offered or sold by the Company after such 120-day period must be reoffered to the applicable Preemptive Rights Holders, as the case may be, provided that the applicable Rights Holders continue to meet the requirements set forth in this paragraph 7. The rights granted by this Section 6 paragraph 7 shall terminate upon the consummation of a Qualified Public Offering.
(c) . Notwithstanding anything herein to the contrary, no Preemptive Rights Holder has any preemptive rights with respect to any New Securities issued in connection with (i) debt financing, except that if the Company issues debt and equity securities together or preferred stock financing (i.e., so long as a "strip"), then such debt and equity securities shall together be deemed to be preferred stock does not constitute New Securities, in which case the Preemptive Rights Holders shall be entitled to purchase their pro rata portion of both the debt and the equity securities being offered by the Company; provided, however, that in such case, the Preemptive Rights Holder must elect to purchase its pro rata portion of both the debt and the equity securities of the Company issued in such financing), (ii) the exercise of Optionsoptions, Warrants warrants or other rights or the conversion or exchange of securities of the Company, (iii) the receipt of paid-in-kind dividends, provided that the underlying securities were issued in compliance with this Section 6, (iv) a stock split, stock dividend, stock distribution or recapitalization in which all similarly situated OSI Stockholders are treated in a similar manner, (v) issuances in any Public Offering, (vi) issuances to the directors, officers or employees of the Company or any Subsidiary of the Company pursuant to a benefit plan or similar arrangement or as an inducement to hire a director, officer or employee of the Company or any Subsidiary of the Company, provided that such issuances are approved by the Board, Board of Directors or (vi) issuances to customers, customers or suppliers or lenders of the Company, provided that such issuances are approved by the Board, or (vii) issuances as consideration in connection with mergers, acquisitions Board of securities or assets by the Company or its Subsidiaries or other business combination transactions involving the Company or its Subsidiaries, provided that such issuances are approved by the BoardDirectors. As used in this Section 6paragraph 7, the term "pro rata portion" with respect to a Preemptive Rights Holder shall mean the aggregate number of New Securities to be issued multiplied by a fraction, the numerator of which is the number of OSI Stockholder Shares held at such time by such Preemptive Rights Holder and the denominator of which is the aggregate number of OSI Stockholder Shares on a fully diluted, as converted, diluted basis.
Appears in 1 contract
Grant of Preemptive Rights. (a) If the Company issues New Securities to any Person (such Person, an "Acquiring Person") at any time after the date hereof, then the Company hereby grants each Stockholder and/or its respective Affiliates (collectively, the "Preemptive Rights Holders") preemptive rights to purchase a pro rata portion of such New Securities at the same price and on the same terms and conditions offered to such Acquiring Person. In the event (and on each occasion) that the Company shall decide to undertake an issuance of New Securities to an Acquiring Person at any time after the date hereofSecurities, the Company will give all Preemptive Rights Holders to the Purchaser, written notice (a "Preemptive Notice") of the Company's decision, describing the amount, type and terms of such New Securities, the purchase price to be paid by the purchasers of such New Securities and the general terms upon which the Company has decided to issue the New Securities (including, without limitation, the expected timing of such issuance which will in no event exceed 60 be more than ninety (90) days after the date of upon which such Preemptive Notice is given or less than twenty (20) Business Days after the date upon which such Preemptive NoticeNotice is given).
(b) Each of the Preemptive Rights Holders . The Purchaser shall have 10 business days twenty (20) Business Days from the date on which it receives a the Preemptive Notice to agree to purchase its pro rata portion Pro Rata Amount of such New Securities for the applicable price Preemptive Price and upon the same general terms specified in the Preemptive Notice by giving written notice to the Company. Each Preemptive Rights Holder shall have Company and stating therein the option quantity of New Securities to purchase less than all of its pro rata portionbe purchased by any such Person. If, in connection with such a proposed issuance of New Securities, any Preemptive Rights Holder the Purchaser shall for any reason fail or refuse to give such written notice to the Company within such 10 business day 20- Business Day period, such Preemptive Rights Holder the Purchaser shall, for all purposes of this Section 68.11, be deemed to have refused (in that particular instance only) to purchase any of such New Securities and to have waived (in that particular instance only) all of its rights under this Section 6 8.11 to purchase any of such New Securities. Upon expiration of the offering periods described in this Section 6, Securities and the Company shall be entitled to sell may issue such New Securities without further compliance with this Section 8.11 for a period of thirty (30) days beginning immediately after such 20-Business Day period.
(b) In the event the Purchaser has the right to acquire any voting New Securities under this Section 8.11, but is prohibited from exercising such right under applicable law, the Company, at the Purchaser's request, offer to sell to the Purchaser, New Securities that do not have voting rights but otherwise have the same terms as such voting New Securities and which the Preemptive Rights Holders have elected not to purchase during the 120 days following such expiration shall be convertible into voting Securities on terms and conditions no more favorable to the purchasers thereof than those offered to the Preemptive Rights Holders in the Preemptive Notice. Any New Securities offered or sold reasonably requested by the Company after such 120-day period must be reoffered to the applicable Preemptive Rights Holders. The rights granted by this Section 6 shall terminate upon the consummation of a Qualified Public OfferingPurchaser.
(c) Notwithstanding anything herein to The provisions of this Section 8.11 shall terminate upon on the contrary, no Preemptive Rights Holder has any preemptive rights with respect to any New Securities issued in connection with date on which the Purchaser owns less than 10% of the Common Stock (ion an as converted basis) debt financing, except that if the Company issues debt and equity securities together (i.e., as a "strip"), then such debt and equity securities shall together be deemed to be New Securities, in which case the Preemptive Rights Holders shall be entitled to purchase their pro rata portion of both the debt and the equity securities being offered owned by the Company; provided, however, that in such case, Purchaser immediately after the Preemptive Rights Holder must elect to purchase its pro rata portion of both the debt and the equity securities of the Company issued in such financing, (ii) the exercise of Options, Warrants or other rights or the conversion or exchange of securities of the Company, (iii) the receipt of paid-in-kind dividends, provided that the underlying securities were issued in compliance with this Section 6, (iv) a stock split, stock dividend, stock distribution or recapitalization in which all similarly situated Stockholders are treated in a similar manner, (v) issuances in any Public Offering, (vi) issuances to the directors, officers or employees of the Company or any Subsidiary of the Company pursuant to a benefit plan or similar arrangement or as an inducement to hire a director, officer or employee of the Company or any Subsidiary of the Company, provided that such issuances are approved by the Board, (vi) issuances to customers, suppliers or lenders of the Company, provided that such issuances are approved by the Board, or (vii) issuances as consideration in connection with mergers, acquisitions of securities or assets by the Company or its Subsidiaries or other business combination transactions involving the Company or its Subsidiaries, provided that such issuances are approved by the Board. As used in this Section 6, the term "pro rata portion" with respect to a Preemptive Rights Holder shall mean the aggregate number of New Securities to be issued multiplied by a fraction, the numerator of which is the number of Shares held at such time by such Preemptive Rights Holder and the denominator of which is the aggregate number of Shares on a fully diluted, as converted, basisInitial Closing Date.
Appears in 1 contract
Grant of Preemptive Rights. (a) If the Company issues New Securities to any Person (such Person, an "Acquiring Person") at any time after the date hereof, then the Company hereby grants each Stockholder and/or its respective Affiliates (collectively, the "Preemptive Rights Holders") preemptive rights to purchase a pro rata portion of such New Securities at the same price and on the same terms and conditions offered to such Acquiring Person. In the event (and on each occasion) that the Company or any of its Subsidiaries, shall decide to undertake an issuance of New Securities (except New Securities issued by a Subsidiary of the Company to an Acquiring Person the Company or a wholly-owned Subsidiary of the Company or a Subsidiary that is a Joint Venture) at any time after a price per share lower than the date hereofthen effective Conversion Price, the Company will give all Preemptive Rights Holders to the Purchaser, written notice (a "Preemptive Notice") of the Company's decision, describing the amount, type and terms of such New Securities, the purchase price to be paid by the purchasers of such New Securities and the general terms upon which the Company has decided to issue the New Securities will be issued (including, without limitation, the expected timing of such issuance which will in no event exceed 60 be more than one hundred twenty (120) days after the date of upon which such Preemptive Notice is given or less than twenty (20) Business Days after the date upon which such Preemptive NoticeNotice is given).
(b) Each of the Preemptive Rights Holders . The Purchaser shall have 10 business days twenty (20) Business Days from the date on which it receives a the Preemptive Notice to agree to purchase its pro rata portion Pro Rata Amount of such New Securities for the applicable price Preemptive Price and upon the same general terms specified in the Preemptive Notice by giving written notice to the CompanyCompany and stating therein the quantity of New Securities to be purchased by any such Person. Each Preemptive Rights Holder shall have If, in such written notice, the option Purchaser specifies an amount of New Securities equal to less than the total number of New Securities it is entitled to purchase less pursuant to such issuance, the Company may undertake to sell any unused portion of such new Securities to any Person on terms no more favorable to such Person than all of its pro rata portionthose contained in the Preemptive Notice so long as such sale is consummated within one hundred twenty (120) days after the date upon which such Preemptive Notice was originally given. If, in connection with such a proposed issuance of New Securities, any Preemptive Rights Holder the Purchaser shall for any reason fail or refuse to give such written notice to the Company within such 10 business day period20- Business Day period or shall elect to purchase its Pro Rata Amount of such New Securities but shall fail to consummate the purchase of such New Securities on the terms set forth in the Preemptive Notice within forty-five (45) days after the date upon which the Preemptive Notice is given, such Preemptive Rights Holder the Purchaser shall, for all purposes of this Section 67.22, be deemed to have refused (in that particular instance only) to purchase any of such New Securities and to have waived (in that particular instance only) all of its rights under this Section 6 7.22 to purchase any of such New Securities. Upon expiration of the offering periods described in this Section 6, Securities and the Company shall be entitled to sell may issue such New Securities which the Preemptive Rights Holders have elected not to purchase during the 120 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Preemptive Rights Holders in the Preemptive Notice. Any New Securities offered or sold by the Company after such 120-day period must be reoffered to the applicable Preemptive Rights Holders. The rights granted by this Section 6 shall terminate upon the consummation of a Qualified Public Offering.
(c) Notwithstanding anything herein to the contrary, no Preemptive Rights Holder has any preemptive rights with respect to any New Securities issued in connection with (i) debt financing, except that if the Company issues debt and equity securities together (i.e., as a "strip"), then such debt and equity securities shall together be deemed to be New Securities, in which case the Preemptive Rights Holders shall be entitled to purchase their pro rata portion of both the debt and the equity securities being offered by the Company; provided, however, that in such case, the Preemptive Rights Holder must elect to purchase its pro rata portion of both the debt and the equity securities of the Company issued in such financing, (ii) the exercise of Options, Warrants or other rights or the conversion or exchange of securities of the Company, (iii) the receipt of paid-in-kind dividends, provided that the underlying securities were issued in without further compliance with this Section 67.22 for a period of one hundred twenty (120) days beginning immediately after such 20-Business Day period. Notwithstanding the foregoing, in the case of New Securities that are convertible into, or exchangeable or exercisable for, Common Stock, the Purchaser shall have the preemptive rights set forth in this Section 7.22 when such New Securities that are convertible into, or exchangeable or exercisable for, Common Stock are issued and not when shares of Common Stock are issued upon conversion, exchange or exercise of such New Securities.
(ivb) a stock splitIn the event the Purchaser has the right to acquire any voting New Securities under this Section 7.22, stock dividendbut is prohibited from exercising such right under applicable law, stock distribution or recapitalization in which all similarly situated Stockholders are treated in a similar manner, (v) issuances in any Public Offering, (vi) issuances to the directors, officers or employees of the Company or any Subsidiary of the Company pursuant to a benefit plan or similar arrangement or as an inducement to hire a director, officer or employee of the Company or any Subsidiary of the Company, provided at the Purchaser's request, shall offer to sell to the Purchaser, New Securities that do not have voting rights but otherwise have the same terms as such issuances are approved voting New Securities and which shall be convertible into voting New Securities on terms reasonably requested by the Board, (vi) issuances to customers, suppliers or lenders of the Company, provided that such issuances are approved by the Board, or (vii) issuances as consideration in connection with mergers, acquisitions of securities or assets by the Company or its Subsidiaries or other business combination transactions involving the Company or its Subsidiaries, provided that such issuances are approved by the Board. As used in this Section 6, the term "pro rata portion" with respect to a Preemptive Rights Holder shall mean the aggregate number of New Securities to be issued multiplied by a fraction, the numerator of which is the number of Shares held at such time by such Preemptive Rights Holder and the denominator of which is the aggregate number of Shares on a fully diluted, as converted, basisPurchaser.
Appears in 1 contract
Sources: Securities Purchase Agreement (American Physician Partners Inc)
Grant of Preemptive Rights. Subject to the terms and conditions of this Section 8.1 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Holder. A Holder shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate.
(a) If The Company shall give notice (the “Offer Notice”) to each Holder, stating (i) its 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.
(b) By notification to the Company issues within twenty (20) days after the Offer Notice is given, each Holder may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock issued and held by such Holder bears to the total Common Stock of the Company then outstanding. At the expiration of such twenty (20) day period, the Company shall promptly notify each Holder that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Holder”) of any other Holder’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Holder may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which Holders were entitled to subscribe but that were not subscribed for by the Holders which is equal to the proportion that the Common Stock issued and held by such Fully Exercising Holder bears to the Common Stock issued and held by all Fully Exercising Holders who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the ninety (90) day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person (such Personor Persons at a price not less than, an "Acquiring Person") at any time after and upon terms no more favorable to the date hereofofferee than, then those specified in the Offer Notice. If the Company hereby grants does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Holders in accordance with this Section 8.1.
(d) Notwithstanding anything to the contrary contained in this Section 8.1, the Company may, in order to expedite the sale of New Securities hereunder, offer and sell all or a portion of the New Securities to any Person or Persons (each Stockholder and/or a “Subscribing Party”) without complying with the provisions of this Section 8.1; provided that, prior to such sale, either (i) each Subscribing Party agrees to offer to sell to each Holder his, her or its respective Affiliates (collectively, the "Preemptive Rights Holders") preemptive rights to purchase a pro rata portion portion, on an as-converted basis, of such New Securities at the same price and on the same terms and conditions offered as issued to the Subscribing Party and in a manner which provides such Acquiring Person. In Holder with rights substantially similar to the event rights outlined in Section 8.1(a), 8.1(b) and 8.1(c) or (and on each occasionii) that the Company shall decide offer to undertake sell an issuance additional amount of New Securities to each Holder (other than the Subscribing Party) only in an Acquiring Person at any time after amount and manner which provides such Holder with rights substantially similar to the date hereofrights outlined in Sections 8.1(a), the Company will give all Preemptive Rights Holders written notice (a "Preemptive Notice"8.1(b) of and 8.1(c). The Subscribing Party or the Company's decision, describing the type of New Securities and the terms upon which the Company has decided to issue the New Securities (includingas applicable, without limitation, the expected timing of such issuance which will in no event exceed 60 days after the date of the Preemptive Notice).
(b) Each of the Preemptive Rights Holders shall have 10 business days from the date on which it receives a Preemptive Notice to agree to purchase its pro rata portion of such New Securities for the applicable price and upon the same terms specified in the Preemptive Notice by giving written notice to the Company. Each Preemptive Rights Holder shall have the option to purchase less than all of its pro rata portion. If, in connection with such a proposed issuance of New Securities, any Preemptive Rights Holder shall for any reason fail or refuse to give such written notice to the Company within such 10 business day period, such Preemptive Rights Holder shall, for all purposes of this Section 6, be deemed to have refused (in that particular instance only) to purchase any of such New Securities and to have waived (in that particular instance only) all of its rights under this Section 6 to purchase any of such New Securities. Upon expiration of the offering periods described in this Section 6, the Company shall be entitled offer to sell such New Securities which to each Holder (other than the Preemptive Rights Holders have elected not to Subscribing Party), respectively and as applicable, within ninety (90) days after the closing of the purchase during of the 120 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Preemptive Rights Holders in the Preemptive Notice. Any New Securities offered or sold by the Company after such 120-day period must be reoffered to the applicable Preemptive Rights Holders. The rights granted by this Section 6 shall terminate upon the consummation of a Qualified Public OfferingSubscribing Party.
(c) Notwithstanding anything herein to the contrary, no Preemptive Rights Holder has any preemptive rights with respect to any New Securities issued in connection with (i) debt financing, except that if the Company issues debt and equity securities together (i.e., as a "strip"), then such debt and equity securities shall together be deemed to be New Securities, in which case the Preemptive Rights Holders shall be entitled to purchase their pro rata portion of both the debt and the equity securities being offered by the Company; provided, however, that in such case, the Preemptive Rights Holder must elect to purchase its pro rata portion of both the debt and the equity securities of the Company issued in such financing, (ii) the exercise of Options, Warrants or other rights or the conversion or exchange of securities of the Company, (iii) the receipt of paid-in-kind dividends, provided that the underlying securities were issued in compliance with this Section 6, (iv) a stock split, stock dividend, stock distribution or recapitalization in which all similarly situated Stockholders are treated in a similar manner, (v) issuances in any Public Offering, (vi) issuances to the directors, officers or employees of the Company or any Subsidiary of the Company pursuant to a benefit plan or similar arrangement or as an inducement to hire a director, officer or employee of the Company or any Subsidiary of the Company, provided that such issuances are approved by the Board, (vi) issuances to customers, suppliers or lenders of the Company, provided that such issuances are approved by the Board, or (vii) issuances as consideration in connection with mergers, acquisitions of securities or assets by the Company or its Subsidiaries or other business combination transactions involving the Company or its Subsidiaries, provided that such issuances are approved by the Board. As used in this Section 6, the term "pro rata portion" with respect to a Preemptive Rights Holder shall mean the aggregate number of New Securities to be issued multiplied by a fraction, the numerator of which is the number of Shares held at such time by such Preemptive Rights Holder and the denominator of which is the aggregate number of Shares on a fully diluted, as converted, basis.
Appears in 1 contract
Grant of Preemptive Rights. (a) If a. The Company hereby grants to Insight the preemptive right to purchase up to its Proportionate Share of any New Securities which the Company issues New Securities may, from time to any Person (such Persontime, an "Acquiring Person") at any time propose to sell or issue after the date hereof, then the Company hereby grants each Stockholder and/or its respective Affiliates (collectively, the "Preemptive Rights Holders") preemptive rights to purchase a pro rata portion of such New Securities at the same price and on the same terms and conditions offered to such Acquiring Person. .
b. In the event (and on each occasion) that the Company shall decide proposes to undertake an issuance or sale of New Securities to an Acquiring Person at any time after the date hereofSecurities, the Company will give all Preemptive Rights Holders Insight thirty (30) days prior written notice (a "Preemptive Notice") of the Company's decisionits intention, describing the type of New Securities and the price and the specific terms upon which the Company has decided proposes to issue or sell the same. Thereafter, Insight will have thirty (30) days from the date of such notice to give the Company written notice of its intention to purchase up to its Proportionate Share of such New Securities, for the same price and upon the terms pursuant to which the New Securities (includingwill be offered, without limitationas specified in the Company's notice, and stating therein the expected timing quantity of such issuance which will New Securities Insight intends to purchase. If the consideration for the New Securities is in no event exceed 60 days after a form other than cash, Insight shall pay equivalent value on a per share basis in cash. Insight shall further have a forty-five (45) day period from the date of the Preemptive Notice).
original notice from the Company in which to commit funding to the purchase of any New Securities and close the acquisition thereof. Failure by Insight to give notice within the thirty (b30) Each day period shall be deemed a waiver by Insight of the Preemptive Rights Holders shall have 10 business preemptive right with respect to such New Securities, provided the Company consummates the issuance of New Securities within ninety (90) days from after the date on which it receives a Preemptive Notice to agree to purchase its pro rata portion expiration of such New Securities for thirty (30) day period in the applicable amount, at substantially the same price and upon on substantially the same terms specified in the Preemptive Notice notice given by giving written the Company under this Section 3.3. In the event the New Securities are to be issued pursuant to an underwritten public offering or under similar circumstances so that the final price or other material terms of the New Securities are not established by the Company at the time the thirty day notice is provided to Insight, the Company's notice to the Company. Each Preemptive Rights Holder shall have the option Insight will provide its anticipated price of, and general terms pursuant to purchase less than all of its pro rata portion. If, in connection with which it intends to issue such a proposed issuance of New Securities, any Preemptive Rights Holder shall for any reason fail or refuse to give such written notice to . Notwithstanding the fact that Insight may notify the Company within such 10 business thirty day period, such Preemptive Rights Holder shall, for all purposes of this Section 6, be deemed to have refused (in period that particular instance only) it intends to purchase any of such New Securities and up to have waived (in that particular instance only) all of its rights under this Section 6 to purchase any Proportionate Share of such New Securities, Insight will not be bound by such election until the final price and terms of such offering are established by the Company. Upon expiration of the offering periods described in this Section 6final price and terms being established, the Company shall provide Insight immediate notice thereof prior to the Company's proposed sale and issuance. If such final price is not greater than one hundred ten percent (110%) of the price stated in the original notice, Insight will be entitled bound by its notice to sell exercise its preemptive rights; if such final price is greater than one hundred ten percent (110%) of the price stated in the original notice, Insight shall not be bound by its original election, but shall have the right for a period not to exceed two (2) hours after receiving notice of the final price to elect to purchase in accordance with the terms of this Section 3.3. In order to both minimize the potential disruption to the Company's ability to offer such New Securities which in an underwritten public offering and to afford Insight with as much notice and information as possible regarding the Preemptive Rights Holders have elected not to purchase during the 120 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Preemptive Rights Holders in the Preemptive Notice. Any New Securities offered or sold by pricing thereof, the Company after such 120will keep Insight reasonably informed of the status of the on-day period must be reoffered to going negotiations with the applicable Preemptive Rights Holders. The rights granted by this Section 6 shall terminate upon the consummation of a Qualified Public Offering.
(c) Notwithstanding anything herein to the contrary, no Preemptive Rights Holder has any preemptive rights managing underwriter with respect to any such terms and anticipated pricing, and further will afford Insight, if Insight so requests, the right to have a representative present to observe the negotiation of the final pricing terms immediately prior to the execution of the applicable underwriting agreement.
c. The right of Insight to purchase New Securities issued in connection with (i) debt financing, except that if the Company issues debt and equity securities together (i.e., as a "strip"), then such debt and equity securities shall together pursuant to this Section 3.3 may be deemed to be New Securitiesexercised, in which case whole or in part, by any of Insight's Affiliates, if Insight expressly grants such right of exercise to such Affiliates, subject to compliance with applicable federal and state securities laws.
d. The right of Insight to appoint members to the Preemptive Rights Holders shall be entitled to purchase their pro rata portion Board (and committees thereof) in accordance with the provisions of both the debt Sections 3.1 and 3.2, and the equity securities being offered by preemptive rights granted to Insight as set forth in Section 3.3, shall lapse in the Company; provided, however, that in such case, event Insight owns less than two and a half percent (2.5%) of the Preemptive Rights Holder must elect to purchase its pro rata portion of both the debt and the equity securities Voting Stock of the Company issued in such financing, (ii) the exercise of Options, Warrants or other rights or the conversion or exchange of securities of the Company, (iii) the receipt of paid-in-kind dividends, provided that the underlying securities were issued in compliance with this Section 6, (iv) a stock split, stock dividend, stock distribution or recapitalization in which all similarly situated Stockholders are treated in a similar manner, (v) issuances in any Public Offering, (vi) issuances to the directors, officers or employees of the Company or any Subsidiary of the Company pursuant to a benefit plan or similar arrangement or as an inducement to hire a director, officer or employee of the Company or any Subsidiary of the Company, provided that such issuances are approved by the Board, (vi) issuances to customers, suppliers or lenders of the Company, provided that such issuances are approved by the Board, or (vii) issuances as consideration in connection with mergers, acquisitions of securities or assets by the Company or its Subsidiaries or other business combination transactions involving the Company or its Subsidiaries, provided that such issuances are approved by the Board. As used in this Section 6, the term "pro rata portion" with respect to a Preemptive Rights Holder shall mean the aggregate number of New Securities to be issued multiplied by a fraction, the numerator of which is the number of Shares held at such time by such Preemptive Rights Holder and the denominator of which is the aggregate number of Shares on a fully diluted, as converted, Fully Diluted basis.
Appears in 1 contract
Sources: Common Stock and Warrants Purchase Agreement (Source Media Inc)
Grant of Preemptive Rights. (a) If Each of the Shareholders agrees that it will use its reasonable best efforts to cause the Company to provide the Minority Shareholders with a preemptive right to purchase a portion of any New Securities that the Company may from time to time after the date hereof propose to issue such that the Shareholders shall have the right to purchase a number of New Securities that will result in each such Shareholder maintaining its percentage ownership interest in the Company, on terms and conditions substantially similar to those set forth in Section 2.5(b) hereof.
(b) In the event and on each occasion that the Company issues New Securities to any Person NPR and not to the Minority Shareholders where the Minority Shareholders were not provided with the right (such Personincluding, an "Acquiring Person"reasonable notice thereof) at any time after the date hereof, then the Company hereby grants each Stockholder and/or its respective Affiliates (collectively, the "Preemptive Rights Holders") preemptive rights to purchase such New Securities on a pro rata portion of such New Securities at the same price basis with, and on the same terms and conditions offered conditions, as NPR, then NPR hereby agrees to offer to the Minority Shareholders the right to purchase a number of any such Acquiring PersonNew Securities such that, with respect to each Minority Shareholder, the total percentage of Shares owned by such Minority Shareholder shall remain unchanged. In the event (and on each occasion) that the Company shall decide to undertake an issuance of New Securities to an Acquiring Person at any time after the date hereofsuch event, the Company NPR will give all Preemptive Rights Holders to each Minority Shareholder written notice (a "Preemptive Notice") of the Company's decision), describing the type of New Securities Securities, the price per unit of the New Security paid by NPR, and the general terms upon which the Company has decided to issue issued the New Securities (including, without limitation, the expected timing of such issuance which will in no event exceed 60 days after the date of the Preemptive Notice).
(b) Securities. Each of the Preemptive Rights Holders Minority Shareholder shall have 10 business days ten (10) Business Days from the date on which it such Minority Shareholder receives a the Preemptive Notice to agree to purchase its pro rata portion the number of such New Securities for set forth above on the applicable price and upon the same terms specified in the Preemptive Notice by giving written notice to NPR and stating therein the Company. Each Preemptive Rights Holder shall have the option quantity of New Securities to purchase less than all of its pro rata portionbe purchased by such Minority Shareholder. If, in connection with such a proposed issuance of New Securities, any Preemptive Rights Holder such Minority Shareholder shall for any reason fail or refuse to give such written notice to the Company NPR within such 10 business 10-day period, such Preemptive Rights Holder Minority Shareholder shall, for all purposes of this Section 62.5, be deemed to have refused (in that particular instance only) to purchase any of such New Securities and to have waived (in that particular instance only) all of its rights under this Section 6 2.5 to purchase any of such New Securities. Upon expiration of the offering periods described in this Section 6, the Company shall be entitled to sell such New Securities which the Preemptive Rights Holders have elected not to purchase during the 120 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Preemptive Rights Holders in the Preemptive Notice. Any New Securities offered or sold by the Company after such 120-day period must be reoffered to the applicable Preemptive Rights Holders. The rights granted by this Section 6 shall terminate upon the consummation of a Qualified Public Offering.
(c) Notwithstanding anything herein to the contrary, no Preemptive Rights Holder has any preemptive rights with respect to any New Securities issued in connection with (i) debt financing, except that if the Company issues debt and equity securities together (i.e., as a "strip"), then such debt and equity securities shall together be deemed to be New Securities, in which case the Preemptive Rights Holders shall be entitled to purchase their pro rata portion of both the debt and the equity securities being offered by the Company; provided, however, that in such case, the Preemptive Rights Holder must elect to purchase its pro rata portion of both the debt and the equity securities of the Company issued in such financing, (ii) the exercise of Options, Warrants or other rights or the conversion or exchange of securities of the Company, (iii) the receipt of paid-in-kind dividends, provided that the underlying securities were issued in compliance with this Section 6, (iv) a stock split, stock dividend, stock distribution or recapitalization in which all similarly situated Stockholders are treated in a similar manner, (v) issuances in any Public Offering, (vi) issuances to the directors, officers or employees of the Company or any Subsidiary of the Company pursuant to a benefit plan or similar arrangement or as an inducement to hire a director, officer or employee of the Company or any Subsidiary of the Company, provided that such issuances are approved by the Board, (vi) issuances to customers, suppliers or lenders of the Company, provided that such issuances are approved by the Board, or (vii) issuances as consideration in connection with mergers, acquisitions of securities or assets by the Company or its Subsidiaries or other business combination transactions involving the Company or its Subsidiaries, provided that such issuances are approved by the Board. As used in this Section 6, the term "pro rata portion" with respect to a Preemptive Rights Holder shall mean the aggregate number of New Securities to be issued multiplied by a fraction, the numerator of which is the number of Shares held at such time by such Preemptive Rights Holder and the denominator of which is the aggregate number of Shares on a fully diluted, as converted, basis.
Appears in 1 contract
Sources: Shareholder Agreement (NPR Inc)
Grant of Preemptive Rights. (a) If the Company issues agrees to issue New Securities to any Person (such Person, Person an "Acquiring Person") at any a subscription, offering, exercise or conversion price ("Offer Price") lower than either (x) the Fair Market Value (as defined in paragraph 5(a)) of such New Securities at the time after the date hereofCompany agrees to issue such New Securities or (y) the applicable Original Purchase Price, then the Company hereby grants each Rollover Stockholder and each Investor, and/or its respective Affiliates, as the case may be, so long as such Investor and/or its Affiliates beneficially owns 35% or more of the OSI Stockholder Shares held by such Investor or its Affiliates on the date hereof (collectivelycollectively with the Rollover Stockholders, the "Preemptive Rights Right A Holders") ), preemptive rights to purchase a pro rata portion of such New Securities at the same price and on the same terms and conditions offered to such Acquiring Person. In the event (and on each occasion) that the Company shall decide to undertake an issuance of New Securities to an Acquiring Person at any time after the date hereofPerson, the Company will give all Preemptive Rights Right A Holders written notice (a "Preemptive Notice") of the Company's decision, describing the type of New Securities and the terms upon which the Company has decided to issue the New Securities (including, without limitation, the expected timing of such issuance which will in no event exceed 60 days after the date of the Preemptive Notice). For the avoidance of doubt, the OSI Stockholders acknowledge and agree that no OSI Stockholder has any preemptive rights with respect to any OSI Stockholder Shares issued or issuable pursuant to the Subscription Agreement.
(b) If the Company issues New Securities to the Principal Investor or its Affiliates, which issuance (including any prior issuance with respect to which such Unit Purchaser, Co-Invest Purchaser, GPII or GPII-A had no preemptive rights hereunder) would either otherwise entitle a Unit Purchaser, Co-Invest Purchaser, GPII or GPII-A to purchase at least $1.5 million of New Securities under this paragraph 7(b) or dilute (calculated on a fully diluted basis) the percentage of beneficial ownership of the Company's Common Stock by a Unit Purchaser, Co-Invest Purchaser, GPII or GPII-A as of the issue date of the New Securities by 10% or more, then the Company hereby grants each Unit Purchaser, Co-Invest Purchaser, GPII or GPII-A and its respective Affiliates (the "Right B Holders" and collectively with the Right A Holders, the "Rights Holders"), preemptive rights to purchase a pro rata portion of such New Securities at the same price and on the same terms and conditions offered to the Principal Investor or its Affiliates, as applicable. In the event (and on each occasion) that the Company shall decide to undertake an issuance of New Securities to the Principal Investor or its Affiliates, the Company will give all Right B Holders a Preemptive Notice of the Company's decision, describing the type of New Securities and the terms upon which the Company has decided to issue the New Securities (including, without limitation, the expected timing of such issuance which will in no event exceed 60 days after the date of the Preemptive Notice).
(c) Each of the Preemptive Rights Holders Holders, as applicable, shall have 10 20 business days from the date on which it receives a Preemptive Notice to agree to purchase its pro rata portion of such New Securities for the applicable price and upon the same terms specified in the Preemptive Notice by giving written notice to the Company. Each Preemptive Rights Holder Holder, as applicable, shall have the option to purchase less than all of its pro rata portion. If, in connection with such a proposed issuance of New Securities, any Preemptive Rights Holder Holders shall for any reason fail or refuse to give such written notice to the Company within such 10 business 20-day period, such Preemptive Rights Holder OSI Stockholder shall, for all purposes of this Section 6paragraph 7, be deemed to have refused (in that particular instance only) to purchase any of such New Securities and to have waived (in that particular instance only) all of its rights under this Section 6 paragraph 7 to purchase any of such New Securities. Upon expiration of the offering periods described in this Section 6paragraph 7, the Company shall be entitled to sell such New Securities and other securities which the Preemptive Rights Holders Holders, as applicable, have elected not to purchase during the 120 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Preemptive applicable Rights Holders in the Preemptive NoticeHolders. Any New Securities offered or sold by the Company after such 120-day period must be reoffered to the applicable Preemptive Rights Holders, as the case may be, provided that the applicable Rights Holders continue to meet the requirements set forth in this paragraph 7. The rights granted by this Section 6 paragraph 7 shall terminate upon the consummation of a Qualified Public Offering.
(c) . Notwithstanding anything herein to the contrary, no Preemptive Rights Holder has any preemptive rights with respect to any New Securities issued in connection with (i) debt financing, except that if the Company issues debt and equity securities together or preferred stock financing (i.e., so long as a "strip"), then such debt and equity securities shall together be deemed to be preferred stock does not constitute New Securities, in which case the Preemptive Rights Holders shall be entitled to purchase their pro rata portion of both the debt and the equity securities being offered by the Company; provided, however, that in such case, the Preemptive Rights Holder must elect to purchase its pro rata portion of both the debt and the equity securities of the Company issued in such financing), (ii) the exercise of Optionsoptions, Warrants warrants or other rights or the conversion or exchange of securities of the Company, (iii) the receipt of paid-in-kind dividends, provided that the underlying securities were issued in compliance with this Section 6, (iv) a stock split, stock dividend, stock distribution or recapitalization in which all similarly situated OSI Stockholders are treated in a similar manner, (v) issuances in any Public Offering, (vi) issuances to the directors, officers or employees of the Company or any Subsidiary of the Company pursuant to a benefit plan or similar arrangement or as an inducement to hire a director, officer or employee of the Company or any Subsidiary of the Company, provided that such issuances are approved by the Board, Board of Directors or (vi) issuances to customers, customers or suppliers or lenders of the Company, provided that such issuances are approved by the Board, or (vii) issuances as consideration in connection with mergers, acquisitions Board of securities or assets by the Company or its Subsidiaries or other business combination transactions involving the Company or its Subsidiaries, provided that such issuances are approved by the BoardDirectors. As used in this Section 6paragraph 7, the term "pro rata portion" with respect to a Preemptive Rights Holder shall mean the aggregate number of New Securities to be issued multiplied by a fraction, the numerator of which is the number of OSI Stockholder Shares held at such time by such Preemptive Rights Holder and the denominator of which is the aggregate number of OSI Stockholder Shares on a fully diluteddiluted basis; provided that in the case of preemptive rights triggered pursuant to Section 7(a)(y) above, as converted, basisthe pro rata portion shall be based on the number of OSI Stockholder Shares purchased by the applicable Rights Holder at an applicable Original Purchase Price which is higher than the Offer Price relative to the total number of OSI Stockholder Shares then outstanding.
Appears in 1 contract
Sources: Stockholders Agreement (Union Corp)