Common use of Preemptive Notice Clause in Contracts

Preemptive Notice. Except for (i) capital stock or any security convertible into or exchangeable for capital stock which may be issued to employees of the Company pursuant to a stock option plan or other compensation arrangement approved by the Company’s board of directors (the “Board of Directors”), (ii) capital stock issued as consideration to an unaffiliated third party in a merger or acquisition transaction approved by the Board of Directors, (iii) capital stock issued pursuant to a conversion of shares of a class of capital stock into shares of another class of capital stock, assuming such classes of capital stock are outstanding on the Closing Date and the terms thereof are not amended after the Closing Date, (iv) any refinancing of the Company’s credit facility as in effect on the date hereof set forth on Schedule 6.1 (the “Existing Credit Facility”) with another syndicated reserve-based credit facility that: (a) contains terms that are not, when taken as a whole, materially less favorable to the Company than the Existing Credit Facility and (b) has an overall cost for borrowings thereunder, including but not limited to the interest rate and fees applicable to borrowings, upfront fees, original issue discount, availability fees and any other fees and expenses (which, for the avoidance of doubt, would include warrants or any other compensation directly or indirectly paid or issued to the lenders thereunder), that in the aggregate on an annualized basis is not more than 225 basis points greater than the overall cost for borrowings under the Existing Credit Facility on the date hereof, (v) common stock issued pursuant to the Rights Offering and (vi) capital stock issued pursuant to a stock split, stock dividend, subdivision or combination of the Company’s outstanding capital stock (each, an “Exempt Issuance”), if the Company at any time or from time to time wishes to (A) issue and sell any shares of capital stock or any security convertible into or exchangeable for capital stock or other securities, in each case, of the Company or any of its Subsidiaries (the “New Securities”) or (B) issue and sell any debt securities of the Company or any of its Subsidiaries or consummate any bank, syndicated credit or other debt financing (a “New Debt Financing”), then the Company shall offer such New Securities or New Debt Financing first to the Committed Investors by sending written notice (the “New Issuance Notice”) to the Committed Investors at least twenty (20) days prior to the issuance and sale of the New Securities or consummation of the New Debt Financing, which shall state (a) the number of shares of New Securities proposed to be issued and sold or the aggregate amount of the New Debt Financing, (b) the proposed purchase price per security of the New Securities or the proposed pricing of the New Debt Financing (the “Proposed Price”) and (c) the date on which the New Securities will be sold to the Committed Investors or the New Debt Financing will be purchased or provided by the Committed Investors. Upon delivery of the New Issuance Notice, such offer shall be irrevocable unless and until the rights provided for in Sections 6.2 and 6.3 shall have been waived or shall have expired. The rights provided for in this Article VI shall terminate on the earlier to occur of the date (i) the Investor no longer holds at least 50% of the aggregate amount of shares of Common Stock it held as of the Closing Date; (ii) the Investor becomes a Defaulting Investor; and (iii) the Investor no longer owns at least 50% of its pro rata ownership percentage in the Company as of the Closing Date (without giving effect to any Exempt Issuance).