Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions: (a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares. (b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). (c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith. (d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors. (e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates. (f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 4 contracts
Sources: Investors’ Rights Agreement (SI-BONE, Inc.), Investors’ Rights Agreement (SI-BONE, Inc.), Investors’ Rights Agreement
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners partners, members, directly or indirectly wholly-owned subsidiaries, parent entities that own all of the equity interests of such Major Investor and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners partners, members, directly or indirectly wholly-owned subsidiaries, parent entities that own all of the equity interests of such Major Investor and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of the Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection Section 2.4(b) are not elected to be obtained as provided in subsection Section 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection Section 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the any issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the that does not constitute an issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Additional Stock pursuant to the Series 7 terms of the Restated Certificate and is hereby waived with respect to the Preferred Stock issued pursuant to the Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliatesan affiliated venture capital fund, and a Major Investor that is a corporation may assign or transfer such rights to any directly or indirectly wholly-owned subsidiary or parent entity that owns all of the equity interests of such Major Investor.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Violin Memory Inc), Investors’ Rights Agreement (Violin Memory Inc), Investors’ Rights Agreement (Violin Memory Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.1 and applicable securities laws, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares New Securities (as hereinafter defined). For purposes of this Section 2.42.1, the term “Major Investor” Investor includes for any entity any general partners partners, managing members and affiliates of a Major such Investor. A Major , and such Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners partners, members and Affiliates affiliates in such proportions as it deems appropriate. Each time Except as otherwise set forth herein, if subsequent to the date of this Agreement the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“SharesNew Securities”), the Company shall first make an offering of such Shares New Securities to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.4 (“Offer Notice”) to the Investors each Investor stating (i) its bona fide intention to offer such SharesNew Securities, (ii) the number of such Shares New Securities to be offered offered, and (iii) the price and terms upon which it proposes to offer such SharesNew Securities.
(b) By written notification received by the Company within twenty fifteen (2015) calendar days after receipt of the giving of Offer Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Offer Notice, up to that portion of such Shares New Securities that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock Registrable Securities then held, held by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise and/or exercise, as applicable, of all Preferred Stock and other securities or rights convertible into, or exercisable or exchangeable for, Common Stock, including options and exercisable securities then outstandingwarrants). The At the expiration of such fifteen (15) day period, the Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may may, by giving notice to the Company, elect to purchase purchase, in addition to the number of shares specified above, up to that portion of the Shares New Securities for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock Registrable Securities then held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)Investors.
(c) If all Shares New Securities that Major Investors are entitled to obtain pursuant to subsection 2.4(bSection 2.1(b) are not elected to be obtained as provided in subsection 2.4(bSection 2.1(b) hereof, the Company may, during the ninety forty-five (9045) day period following the expiration of the period periods provided in subsection 2.4(bSection 2.1(b) hereof, offer and sell the remaining unsubscribed portion of such Shares New Securities to any person Person or persons Persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the Shares New Securities within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares New Securities shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.1 shall not be applicable to (i) any offering of any Exempted Securities as defined in the issuance or sale Company’s Certificate of Incorporation, as amended, and shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for issued in the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsIPO.
(e) The rights provided in under this Section 2.4 2.1 may not be assigned transferred by an Investor to the same parties, subject to the same restrictions, as any transfer of registration rights pursuant to Section 1.11 (clauses (i) and (ii) only). In addition, the rights under this Section 2.1 may be transferred, in whole or transferred in part, by any Major Investor to any other Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 3 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Tandem Diabetes Care Inc), Investors’ Rights Agreement (Tandem Diabetes Care Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42, the Company hereby grants to each Major Investor (as hereinafter defined) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42, a Major Investor shall mean (i) any Investor who holds at least 30% of the term “Major Investor” original investment such Investor makes in the Company pursuant to the Securities Purchase Agreement and (ii) any person who acquires at least 15% of the Series A Preferred Stock (or the common stock issued upon conversion thereof) issued pursuant to the Securities Purchase Agreement. For purposes of this Section 2, Investor includes any general partners and affiliates of a Major an Investor. A Major An Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by certified mail (“"Notice”") to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty (20) 20 calendar days after the giving of the Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock common stock issued and held, or issuable upon conversion of the Series A Preferred Stock then held, by such Major Investor bears to the total number of shares of Common Stock common stock of the Company then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase which purchases all the shares available to it (a “"Fully-Exercising Major Investor”") of any other Major Investor’s 's failure to do likewise. During the ten (10) ten-day period commencing after such information is given, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, that Investors which is equal to the proportion that the number of shares of Common common stock issued and held, or issuable upon conversion of Series A Preferred Stock held then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common common stock issued and held, or issuable upon conversion of the Series A Preferred Stock held then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major which Investors are entitled to obtain pursuant to subsection 2.4(b(b) are not elected to be obtained as provided in subsection 2.4(b(b) hereof, the Company may, during the ninety (90) 30-day period following the expiration of the period provided in subsection 2.4(b(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 30 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2 shall not be applicable to (i) to the issuance or sale of shares of Common Stock common stock (or options therefor) to employees, directors, consultants and other service providers employees for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities employment pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Actstock option or stock purchase plan, (iiiii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iviii) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors otherwise or (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (viiv) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, relationships provided such issuances are for other than primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates and provided that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of any such offeringissuance, the Investor is aggregate of such issuance and similar issuances in the preceding twelve month period do not an “accredited investor,” as that term is then defined in Rule 501(a) exceed 2% of the Act then outstanding Common Stock of the Company (assuming full conversion and (ii) such offering exercise of Shares is otherwise being offered only to accredited investorsall convertible and exercisable securities).
(e) The rights provided right of first refusal set forth in this Section 2.4 2 may not be assigned or transferred by any Major Investor; providedtransferred, however, except that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering such right is assignable by each Holder to any wholly owned subsidiary or parent of, or to any corporation or entity that is, within the meaning of the Act, controlling, controlled by or under common control with, any such Holder, and (ii) a Liquidation Eventsuch right is assignable between and among any of the Holders.
Appears in 3 contracts
Sources: Investors' Rights Agreement (Amerigon Inc), Securities Purchase Agreement (Amerigon Inc), Investors' Rights Agreement (Argyros George L)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.3, the Company hereby grants to each Major Investor Stockholder a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled Stockholder who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or Affiliates, including Affiliated Funds, or Family Trusts, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, of its capital stock or securities convertible into or exchangeable or exercisable for any shares of, of any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor Stockholder in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“Notice”) to the Investors Stockholders stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 15 calendar days after delivery of the giving of Notice, each Major Investor Stockholder, by written notice to the Company, may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock all convertible securities then held, by such Investor Stockholder bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities). Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing thereunder, as determined by the Company, in is reasonable discretion. The Company shall promptly, in writing, inform each Major Investor Stockholder that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major InvestorStockholder’s failure to do likewise. During the ten (10) -day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may shall be entitled to elect to purchase or obtain, by written notice to the Company, that portion of the Shares for which Major Investors Stockholders were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Stockholders that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion of all convertible securities then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock then outstanding (assuming full conversion of all convertible securities) and held by all Fully-Exercising Major Investors. Any Shares that remain unsubscribed for shall be re-offered to the Fully-Exercising Investors which elected to purchase their full allocation of unsubscribed Shares in the same manner until (assuming full conversion and exercise of i) all convertible and exercisable securities then outstanding)Shares have been subscribed for or (ii) no Fully-Exercising Investor elects to purchase any additional Shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(bSection 3.3(b) hereof, offer the remaining unsubscribed portion of such Shares the Shares, if any, to any person Person or persons Persons at a price not less than thatthan, and upon terms no more favorable to the offeree than thosethan, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors Stockholders in accordance herewith.
(d) The right of first offer in this Section 2.4 3.3 shall not be applicable to (i) the issuance of securities in connection with stock dividends, stock splits or similar transactions; (ii) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for directors of the primary purpose of soliciting Company, directly or retaining their services pursuant to plans a stock option plan, restricted stock unit plan, restricted stock purchase plan or agreements other stock plan approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”)Board; (iiiii) the issuance of securities pursuant (or options, restricted stock units or warrants therefor) to a bona fidefinancial institutions, firmly underwritten public offering of shares of Common Stock registered under the Actequipment lessors, brokers or similar Persons in connection with commercial credit arrangements, equipment financings, commercial property lease transactions or similar transactions; (iiiiv) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofof this Agreement, including without limitation, warrants (ivincluding the Warrant), notes, restricted stock units or options; (v) the issuance of securities in connection with a bona fide business acquisition acquisitions, mergers or similar transactions, the terms of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, which are approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, Board; (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which Common Stock issuable upon conversion of the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or Stock; (vii) the issuance of Common Stock in a public offering prior to or in connection with which all outstanding shares of the Preferred Stock will be converted to Common Stock; (viii) the issuance of securities (or options, restricted stock units or warrants therefor) to non-Affiliates any Person as a component of any business relationship with such Person involving a material marketing, distribution, product development, supply or technology licensing arrangement or any other arrangements involving corporate partners that are specifically deemed not to be subject to primarily for purposes other than raising capital, the right terms of first offer in this Section 2.4 which business relationship with such Person are approved by the written consent or Board; (ix) the issuance of securities with the affirmative vote of the Major Investors holding greater than fifty percent (50%) holders of a majority of the Registrable Securities then held by all Major Investorsoutstanding shares of each of: (A) the Series A Preferred Stock, voting as a separate class, and (B) Series A-1 Preferred Stock and Series B Preferred Stock, voting together as a separate class on an as converted to Common Stock basis; or (x) that, with unanimous approval of the Board, are not offered to any existing stockholder of the Company. In addition to the foregoing, the right of first offer in this Section 2.4 3.3 shall not be applicable with respect to any Investor in Stockholder and any subsequent offering of Shares securities issuance, if (i) at the time of such offeringsubsequent securities issuance, the Investor such Stockholder is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Securities Act, and (ii) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Progenity, Inc.), Investors’ Rights Agreement (Progenity, Inc.), Investors’ Rights Agreement (Progenity, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.2, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such SharesShares (“Sale Notice”).
(b) By written notification received by the Company within twenty Within fifteen (2015) calendar days after delivery of the giving of Sale Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Sale Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all outstanding convertible and or exercisable securities then outstandingsecurities, including granted options regardless of whether or not vested). Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing thereunder. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) ten-day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full issued and held, or issuable upon conversion and exercise of all convertible and or exercisable securities then outstanding) held, by such Fully-Exercising Investor bears to the total number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full issued and held, or issuable upon conversion and exercise of all convertible and or exercisable securities then outstanding)held, by all Fully-Exercising Investors of the Company.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.2(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Sale Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.2 shall not be applicable to (i) the issuance of securities in connection with stock splits or dividends; (ii) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers directors for the primary purpose of soliciting or retaining their services services, pursuant to (A) the 2000 Stock Plan of the Company, (B) the 2010 Equity Incentive Plan of the Company (as amended in connection with the Transaction) or (C) stock option or stock purchase plans or agreements approved by (I) a majority of the Company’s Board directors of Directors the Company and (which approval shall include II) a majority of the affirmative vote directors elected solely by the holders of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director 2 Preferred Stock (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the a “Preferred DirectorsBoard Supermajority”); (iiiii) the issuance of securities pursuant to financial institutions or lessors in connection with commercial credit arrangements, equipment financings, commercial property lease transactions, or similar transactions, the terms of which have been approved by a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, Board Supermajority; (iiiiv) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, currently outstanding; (ivv) the issuance of securities in connection with a bona fide business acquisition acquisition, merger or similar transaction, the terms of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, which have approved by the Company’s a Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, Supermajority; (vi) the issuance of stocksecurities to an entity, warrants or other securities or rights to persons or entities as a component of any business relationship with which the Company has business relationshipssuch entity also involving a material marketing, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of distribution, product development, supply and/or technology licensing arrangement approved by a Preferred Director), or Board Supermajority; (vii) the issuance of securities the Series 1 and Series 2 Preferred Stock pursuant to non-Affiliates that the Purchase Agreement; or (viii) that, with the approval of the holders of at least a Requisite Series 2 Majority of the Series 2 Preferred Stock, voting together as a class, are specifically deemed not offered to be subject any existing stockholder of the Company.
(e) Notwithstanding the foregoing, in connection with the Company’s initial public offering pursuant to a registration statement filed with and declared effective by the SEC under the Securities Act (the “Initial Public Offering”), the Company shall, pursuant to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.2.2:
(e1) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a notify each Major Investor that is a venture capital fund may assign or transfer registration statement relating to the Initial Public Offering of the Shares has been filed with the SEC within five business days following the date of such rights to its Affiliates.filing;
(f2) The covenants set forth deliver to each Major Investor as soon as practicable after it becomes available, the preliminary prospectus (and any amendment or supplement thereto) contained in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of registration statement; and
(i3) a Qualified notify each Major Investor that the registration statement relating to the Initial Public Offering or (ii) a Liquidation Eventof the Shares has been declared effective by the SEC within three hours of such declaration.
Appears in 3 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Impinj Inc), Investors’ Rights Agreement (Impinj Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major InvestorShares. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate; provided, that any such partner or affiliate shall, if not already a party, agree to become a party to this Agreement as an “Investor” hereunder. Each time following the date hereof that the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:.
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) 5.6 to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty fifteen (2015) calendar days after delivery of the giving of Noticenotice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Noticenotice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock deemed to be held by such Major Investor (including all shares of Common Stock issuable or issued and held, or issuable upon conversion of the Preferred Stock then held, by such Investor or upon the exercise of outstanding warrants or options) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full including all shares of Common Stock issuable or issued upon conversion and of the Preferred Stock or upon the exercise of all convertible and exercisable securities then outstandingoutstanding warrants or options). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion of Preferred Stock then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of the Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(bSection 3.4(b) are not elected to be obtained as provided in subsection 2.4(bSection 3.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(bSection 3.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Noticenotice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty ninety (6090) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 3.4 shall not be applicable to to:
(i) the issuance or sale of shares of Common Series F Preferred Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote as part of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); Financing;
(ii) the issuance of securities Common Stock upon the conversion of Convertible Securities (as defined in the Restated Certificate) or shares of Preferred Stock, and capital stock issued pursuant to a bona fideany such rights or agreements granted after the date of this Agreement, firmly underwritten public offering so long as the rights of first offer established by this Section 3.4 were complied with, waived or inapplicable pursuant to any provisions of this section 3.4(d);
(iii) shares of Common Stock registered under the Actissued or issuable by reason of a dividend, (iiistock split, split-up or other distribution on shares of Common Stock that is covered by Section 3(f) the issuance or Section 3(g) of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as Article FOURTH, Part C of the date hereof, Restated Certificate and shares of Common Stock issued or deemed issued as a dividend or Distribution (as defined in the Restated Certificate) on Preferred Stock;
(iv) the issuance of securities in connection with a bona fide business acquisition Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights 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, the principal purpose of or by which is other than the Company, whether by merger, consolidation, raising of capital through the sale of assets, sale or exchange equity securities of stock or otherwise, the Company and the terms of which are approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), Directors;
(v) the issuance and of shares of Common Stock or Convertible Securities to financial institutions, equipment lessors, landlords, brokers or similar entities in connection with commercial credit arrangements, equipment financings, commercial property lease transactions or similar transactions, the principal purpose of which is other than the raising of capital through the sale of Series 7 Preferred Stock pursuant to equity securities of the Series 7 Purchase Agreement, Company and the terms of which are approved by the Board of Directors;
(vi) the issuance of stockshares of Common Stock or Convertible Securities in connection with bona fide acquisitions, warrants mergers or other securities or rights to persons or entities with similar transactions, the terms of which are approved by the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote Board of a Preferred Director), or Directors;
(vii) shares of Common Stock issued or issuable upon the issuance conversion of the Preferred Stock or the exercise of the Common Warrants;
(viii) shares of Common Stock issued or issuable pursuant to a Qualified Public Offering; or
(ix) shares of Common Stock or Convertible Securities issuable or issued to an entity as a component of any corporate strategic relationship or transaction, the principal purpose of which is other than the raising of capital through the sale of equity securities to non-Affiliates that of the Company and which terms are specifically deemed not to be subject to the right of first offer in this Section 2.4 approved by the written consent or affirmative vote Board of the Major Investors holding greater than fifty percent Directors.
(50%e) of the Registrable Securities then held by all Major Investors. In addition to Notwithstanding the foregoing, the right of first offer in this Section 2.4 3.4 shall not be applicable to any Major Investor with respect to any Investor in any subsequent offering issuance of Shares if (i) at the time of the Company issues such offeringShares, the such Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a501(d) of Regulation D promulgated under the Act Securities Act, and (ii) such offering issuance of Shares is otherwise only being offered only by the Company to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Sagimet Biosciences Inc.), Investors’ Rights Agreement (Sagimet Biosciences Inc.), Investors’ Rights Agreement (Sagimet Biosciences Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.3, the term “Major Investor” Investor includes any general partners and affiliates Affiliates of a Major Investor. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a written notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 10 calendar days after delivery of the giving of Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities). Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing thereunder. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day 10)-day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full issued and held, or issuable upon conversion and exercise of all convertible and or exercisable securities then outstanding) held, by such Fully-Exercising Investor bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion and exercise of all convertible or exercisable securities then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 60-day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 paragraph 2.3 shall not be applicable to (i) to the issuance or sale of shares of Common Stock (or options therefor) to employees, consultants and directors, consultants and other service providers pursuant to plans or agreements approved by the Board of Directors for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Directorservices, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance to or after consummation of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the ActQualified IPO, (iii) to the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) to the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, (v) to the issuance or sale of shares of Series G Preferred on or after the date hereof pursuant to the Purchase Agreement, (vi) to the issuance of securities to financial institutions or lessors in connection with commercial credit arrangements, equipment financings, commercial property lease transactions or similar transactions approved by the Board of Directors, (vii) to any issuances of securities in connection with strategic transactions involving the Company and other entities, including, but not limited to (1) joint ventures, manufacturing, marketing or distribution arrangements or (2) technology transfer or development arrangements; provided that such strategic transactions, and the issuance of securities therein, have been approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided that such issuances are for other than primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director)purposes, or (viiviii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 connection with any stock split, stock dividend or recapitalization by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major InvestorsCompany. In addition to the foregoing, the right of first offer in this Section 2.4 2.3 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares securities issuance, if (i) at the time of such offeringsubsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of promulgated under the Act Securities Act, and (ii) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided in No Major Investor shall have a right of first offer pursuant to this Section 2.4 may not be assigned or transferred by any section if (i) immediately following the exercise of such Major Investor; provided, however, that ’s right of first offer it shall be a Covered Person (as defined below) and (ii) the Major Investor or any of its directors, executive officers, other officers that may serve as a director or officer of any company in which it invests, general partners or managing members or any person that would be deemed a beneficial owner of the securities of the Company held by the Major Investor (in accordance with Rule 506(d) of the Securities Act) is a venture capital fund may assign or transfer such rights subject to its Affiliates.
(f) The covenants any Bad Actor Disqualification, except as set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (iRule 506(d)(2)(ii) a Qualified Public Offering or (iiiii) or (d)(3) under the Securities Act. “Covered Persons” are those persons specified in Rule 506(d)(1) under the Securities Act, including the Company; any predecessor or affiliate of the Company; any director, executive officer, other officer participating in the offering, general partner or managing member of the Company; any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power; any promoter (as defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of the sale of the Stock; and any person that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of the Stock (a Liquidation Event“Solicitor”), any general partner or managing member of any Solicitor, and any director, executive officer or other officer participating in the offering of any Solicitor or general partner or managing member of any Solicitor.
Appears in 3 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Nlight, Inc.), Investors’ Rights Agreement (Nlight, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each (i) Investor who holds at least 250,000 shares of Preferred Stock, (ii) Note Lender who holds Lender Warrants exercisable for at least 250,000 shares of Common Stock and (iii) Common Holder who holds at least 250,000 shares of Common Stock (each a “Major Investor Investor”) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates Affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities of any type whatsoever (including without limitation, options, warrants and convertible debt) that are or may become convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt whether common or equity securities) preferred (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after receipt of the giving of Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable Registrable Securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities Registrable Securities then outstanding).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to stock plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”)Board; (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock Stock, registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as including, without limitation, the conversion of the date hereofinterest pursuant to that certain Note and Warrant Purchase Agreement dated November 18, 2002 and those certain promissory notes issued in connection therewith, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company that constitutes a Liquidation Event (as defined in the Company’s Fourth Amended and Restated Certificate of Incorporation, as amended (a “Liquidation Event”)), whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by or the Company’s Board issuance of Directors (which approval shall include the vote securities to sellers as purchase price in connection with acquisitions of a Preferred Director)other entities, (v) the issuance and sale of Series 7 C Preferred Stock pursuant to the Series 7 Purchase C Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are for other than primarily for non-equity financing purposes (which approval shall include and are approved by a majority of the affirmative vote of a Preferred Director), Board or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote that, with unanimous approval of the Major Investors holding greater than fifty percent (50%) Board, are not offered to any existing stockholder of the Registrable Securities then held by all Major InvestorsCompany. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliatesan Affiliated venture capital fund.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) the sale of securities pursuant to a Qualified Public Offering or (ii) a Liquidation Eventbona fide, firmly underwritten public offering of shares of common stock registered under the Act.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Synacor, Inc.), Investors’ Rights Agreement (Synacor, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.5, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.5, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly) issued and held, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion or issuable upon conversion of the Shares for which Major Investors were entitled to subscribePreferred Stock then held, but which were not subscribed for by all the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b2.5(b) are not elected to be obtained as provided in subsection 2.4(b2.5(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b2.5(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.5 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) (appropriately adjusted for any stock split, dividend, combination or other recapitalization) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorDirectors, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering Qualified Public Offering (as defined in the Company’s Amended and Restated Certificate of shares of Common Stock registered under the ActIncorporation (as amended from time to time), (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 E Preferred Stock pursuant to the Series 7 Purchase E Agreement, or (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are approved by the Company’s Board of Directors and are primarily for non-other than equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investorspurposes. In addition to the foregoing, the right of first offer in this Section 2.4 2.5 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 2.5 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 2.5 shall terminate and be of no further force or effect upon the consummation of (i) the Company’s sale of its Common Stock or other securities pursuant to Registration Statement under the Act (other than a Qualified Public Offering registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option, stock purchase or similar plan or a SEC Rule 145 transaction) or (ii) a Liquidation Event, as that term is defined in the Restated Certificate.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Avinger Inc), Investors’ Rights Agreement (Avinger Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates Affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “ROFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) 20 calendar days after the giving of the ROFO Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the ROFO Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding held by all Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) (the “Pro-Rata Percentage”). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) -day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock issued and held by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) -day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the ROFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to to:
(i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote a majority of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); ;
(ii) the issuance of securities pursuant to in a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, Qualified Public Offering;
(iii) the issuance of securities pursuant to Common Stock or other underlying security actually issued upon the conversion conversion, exchange or exercise of convertible or exercisable securities outstanding as of the date hereof, any derivative security;
(iv) the issuance of securities issued in connection with a bona fide business acquisition of or by the Companyacquisitions, whether by merger, consolidation, sale sales of assets, sale mergers or exchange similar transactions, the terms of stock or otherwise, which are approved by a majority of the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), Directors;
(v) the issuance and sale of Series 7 E Preferred Stock pursuant to the Series 7 E Purchase Agreement, ;
(vi) the issuance of stocksecurities in connection with stock splits, warrants stock dividends or other distributions on the Company’s capital stock;
(vii) the issuance of securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-other than equity financing purposes purposes, provided that in each case, (which approval shall include x) the affirmative vote terms of such issuance have been approved by a majority of the Preferred DirectorDirectors, and (y) the aggregate number of securities or rights issued pursuant to this clause (vii), clause (viii) and clause (ix) shall not exceed 5,000,000 (on an as-converted to Common Stock or as-exercised basis, and subject to appropriate adjustment for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like);
(viii) securities issued to financial institutions with federal or state charters or to lessors in connection with commercial credit arrangements, equipment financings, commercial property lease transactions or similar transactions, provided that in each case (x) the terms of such issuance have been approved by a majority of the Preferred Directors, and (y) the aggregate number of securities or rights issued pursuant to this clause (viii), clause (vii) and clause (ix) shall not exceed 5,000,000 (on an as-converted to Common Stock or as-exercised basis, and subject to appropriate adjustment for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like);
(ix) securities issued or issuable to an entity as a component of any business relationship with such entity for the purpose of (A) joint venture, technology licensing or development activities, (B) distribution, supply or manufacture of the Company’s products or services or (C) any other arrangements involving corporate partners that are primarily for purposes other than raising capital, provided that, in each case, (x) the terms of such business relationship and such issuance have been approved by a majority of the Preferred Directors, and (y) the aggregate number of securities or rights issued pursuant to this clause (ix), clause (vii) and clause (viii) shall not exceed 5,000,000 (on an as-converted to Common Stock or as-exercised basis, and subject to appropriate adjustment for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like);
(x) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right shares of first offer in this Section 2.4 by the written consent or affirmative vote Common Stock as a result of the Major Investors holding greater than fifty percent antidilution provisions of any derivative securities;
(50%xi) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares a Major Investor, if (i) at the time of such offeringoffering of Shares, the such Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliatesan affiliated venture capital fund.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option, stock purchase or similar plan or a SEC Rule 145 transaction) or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors Rights Agreement, Investors Rights Agreement (Versartis, Inc.)
Right of First Offer. Subject to the terms and conditions -------------------- specified in this Section 2.42.3, the Company hereby grants to each Major Investor Investor, a right of first offer to purchase its Pro Rata Share (as hereinafter defined for the purpose of this Section 2.3) (in whole or in part) with respect to future sales by the Company of its Future Shares (as hereinafter defined). For purposes of this Notwithstanding Section 2.42.6(b), the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major each Investor shall be entitled to assign or apportion the right of first offer hereby granted it among itself itself, its partners, members and its partners and Affiliates affiliates (including in the case of a venture capital fund other venture capital funds affiliated and/or under common investment management with such fund) in such proportions as it deems appropriate. For purposes of this Section 2.3, an Investor's "Pro Rata Share" of Future Shares shall be a fraction, the numerator of which is the number of shares of Common Stock issuable upon conversion of Preferred Stock then held by such Investor plus the number of shares of Common Stock then held by such Investor that were actually issued to such Investor upon conversion of Preferred Stock and the denominator of which is the total number of shares of the Company's Common Stock then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and including all shares of Common Stock reserved for future issuance pursuant to the Company's 1998 Stock Option Plan and 2002 Stock Plan). Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Future Shares”"), the Company shall first make an offering of such Future ------------- Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“"Notice”") to ------ each of the Investors stating (i) its bona fide intention to offer such Future Shares, (ii) the number of such Future Shares to be offered offered, and (iii) the price and terms a summary of the terms, if any, upon which it proposes to offer such Future Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Each Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to its Pro Rata Share of such Future Shares by notifying the Company in writing within ten (10) calendar days from the date the Notice is given by the Company. The Company shall promptly, in writing, inform each Investor that elects to purchase all the Future Shares available to it (a "Fully-Exercising Investor") of any other ------------------------- Investor's failure to do likewise. During the ten (10) calendar day period commencing after such information is given, each Fully-Exercising Investor may elect to purchase that portion of such the Future Shares for which Investors were entitled to subscribe but that equals were not subscribed for by the Investors that is equal to the proportion that the number of shares of Common Stock issuable upon conversion of the Preferred Stock then held by such Fully-Exercising Investor plus the number of shares of Common Stock then held by such Fully-Exercising Investor that were actually issued to such Investor upon conversion of Preferred Stock bears to the total number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed Future Shares.
(c) If all To the extent that Future Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained by the Investors as provided in subsection 2.4(b) hereofb, the Company may, during the ninety (90) day period calendar days following the expiration of the period provided in subsection 2.4(b) hereofb, offer the remaining unsubscribed portion of such Future Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Future Shares within such period, or if such agreement is not consummated within sixty thirty (6030) calendar days of the execution thereof, the right provided hereunder in this Section 2.3 shall be deemed to be revived and such Future Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to the issuance of (i) the issuance or sale of shares of Common Stock (issuable or options therefor) issued to employees, directors, consultants and other service providers for or directors of the primary purpose of soliciting Company directly or retaining their services pursuant to plans the Company's 1998 Stock Option Plan, 2002 Stock Plan or agreements other employee stock incentive programs or arrangements approved by a majority of the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorDirectors, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or Preferred Stock issuable upon exercise of convertible or exercisable securities warrants outstanding as of the date of hereof, (iii) capital stock or warrants or options to purchase capital stock issued to unaffiliated entities of the Company in connection with bona fide acquisitions, mergers or similar transactions, the terms of which are approved by a majority of the Board of Directors, (iv) shares of Common Stock issued or issuable to banks, equipment lessors or other financial institutions pursuant to a commercial leasing or debt financing transaction approved by a majority of the issuance Board of securities Directors, (v) shares of Common Stock issued or issuable upon conversion of the Shares, (vi) shares of Common Stock issued or issuable in a public offering prior to or in connection with a bona fide business acquisition which all outstanding shares of Preferred Stock will be converted to Common Stock, (vii) shares of Common Stock issued in connection with any stock split, stock dividend, recapitalization, or the like by the Company, whether by merger, consolidation, sale and (viii) shares of assets, sale Common Stock issued pursuant to a transaction involving a strategic partner or exchange non-employee service provider the primary purpose of stock or otherwise, which is other than raising equity capital and which is approved by a majority of the Company’s Board of Directors Directors.
(which approval shall include the vote of a Preferred Director), (ve) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the The right of first offer in this Section 2.4 2.3 with respect to holders of Series B Preferred Stock may be waived by the written consent or affirmative vote or consent of the Major Investors holding greater than fifty percent (50%) holders of a majority of the Registrable Securities then held by all Major InvestorsSeries B Preferred Stock. In addition to the foregoing, the The right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering holders of Shares if (i) at Series A Preferred Stock may be waived by the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) affirmative vote or consent of the Act and (ii) such offering holders of Shares is otherwise being offered only to accredited investorsa majority of the Series A Preferred Stock.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Altiris Inc), Investors' Rights Agreement (Altiris Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock Registrable Securities issued and held by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed Shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Carve Out Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and the Restated Voting AgreementCertificate) or any securities from which such Carve Out Stock was derived, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) or the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) a majority of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (iA) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (iiB) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a the Company’s Qualified Public Offering Offering, as that term is defined in the Restated Certificate or (ii) a Liquidation Event, as that term is defined in the Restated Certificate.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Rubrik, Inc.), Investors’ Rights Agreement (Rubrik, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.3, the term “Major Investor” Investor includes any general partners partners, managing members and affiliates of a such Major Investor, including Affiliated Funds. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities, rights to purchase securities or debt convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar Within 15 days after delivery of the giving of RFO Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the sum of (i) the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities) and exercisable securities then outstanding)(ii) the total number of shares of Common Stock issuable to employees, consultants or directors pursuant to a stock option plan, restricted stock plan, or other stock plan approved by the Board of Directors. Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) -day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full issued and held, or issuable upon conversion and exercise of all convertible and or exercisable securities then outstanding) held, by such Fully-Exercising Investor bears to the total number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of after the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to to:
(i) Common Stock issued pursuant to stock dividends, stock splits or similar transactions, as described in Section 4(d)(ii) of the issuance or sale of Restated Certificate;
(ii) up to 1,356,246 shares of Common Stock (plus any additional shares reserved under the Company’s Amended and Restated 2006 Stock Plan (the “Stock Plan”) pursuant to Section 2.7 hereof or options thereforsuch greater number as may be approved by the Board of Directors, including the approval of both Preferred Directors (as defined in Section 5(b) of Article IV(B) of the Restated Certificate)) issued or issuable to employees, directorsofficers, consultants and or directors of the Company or other service providers persons performing services for the primary purpose of soliciting or retaining their services Company pursuant to plans the Stock Plan;
(iii) capital stock, or agreements options or warrants to purchase capital stock, issued to financial institutions or lessors in connection with commercial credit arrangements, equipment financings, commercial property lease transactions or similar transactions the terms of which are approved by the Company’s Board of Directors Directors;
(which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (iiiv) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or Preferred Stock issuable upon exercise of warrants, notes, or other convertible or exercisable securities outstanding as of the date hereofof the Restated Certificate;
(v) Common Stock issued upon conversion of the Preferred Stock;
(vi) capital stock issued or issuable to an entity as a component of any business relationship with such entity for the purpose of (A) joint venture, technology licensing or development activities, (ivB) the issuance distribution, supply or manufacture of securities in connection with a bona fide business acquisition of or by the Company’s products or services, whether by mergeror (C) any other arrangements involving corporate partners that are primarily for purposes other than raising capital, consolidation, sale provided that the terms of assets, sale or exchange of stock or otherwise, such business relationship with such entity are approved by the Company’s Board of Directors (which Directors, including the approval shall include the vote of a at least two Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or Directors; or
(vii) Shares of Series E Preferred Stock issued in accordance with the issuance terms of securities that certain Series E Preferred Stock Purchase Agreement made on or about the date hereof by and among the Company and the purchasers listed on Exhibit A attached thereto, as the same may be amended, restated, supplemented or otherwise modified from time to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorstime.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Surgiquest Inc), Investors’ Rights Agreement (Surgiquest Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor (as long as such Major Investor is not a competitor of the Company) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) : The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) . Within 15 calendar days after delivery of the giving of RFO Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the sum of (A) the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities) and exercisable securities then outstanding)(B) shares of Common Stock issuable to employees, consultants or directors pursuant to a stock option plan, restricted stock plan, or other stock plan approved by the Board of Directors. Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing thereunder. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) -day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full issued and held, or issuable upon conversion and exercise of all convertible and or exercisable securities then outstanding) held, by such Fully-Exercising Investor bears to the total number of shares of Common Stock held then issued and held, or issuable upon conversion of the Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Investors. The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than thosethan, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) . The right of first offer in this Section 2.4 2.3 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates Shares that are specifically deemed not to be subject to excluded from the right definition of first offer “Additional Stock” set forth in this Section 2.4 by the written consent or affirmative vote 4(d)(i)(B) of the Major Investors holding greater than fifty percent (50%Article IV(B) of the Registrable Securities then held by all Major InvestorsRestated Certificate. In addition to the foregoing, the right of first offer in this Section 2.4 2.3 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares securities issuance, if (i) at the time of such offeringsubsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Securities Act, and (ii) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Expensify, Inc.), Investors’ Rights Agreement (Expensify, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.1(a), the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares Equity Securities (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“SharesEquity Securities”), the Company shall first make an offering of such Shares Equity Securities to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a written notice in accordance with Section 3.5 (“Notice”) 4.5 to the Major Investors stating (i) its the Company’s bona fide intention to offer such SharesEquity Securities, (ii) the number of such Shares Equity Securities to be offered offered, and (iii) the price and terms terms, if any, upon which it the Company proposes to offer such SharesEquity Securities (the “Notice”).
(b) By written notification received by the Company within twenty Within fifteen (2015) calendar days after the giving of the Notice, each the Major Investor may elect in writing to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that Equity Securities which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock the Shares then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) ten-day period commencing after such information is given, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares Equity Securities for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major InvestorsInvestors (the “Overallotment Right”), that is such portion equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion of Shares then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of the Shares then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of the unsubscribed shares; provided, however, if any Wellington Investor chooses not to purchase all convertible and exercisable securities the shares available to it, then outstanding)the other Wellington Investors shall have the right to purchase such shares not subscribed for by such Wellington Investor, in preference to the Overallotment Right.
(c) If all Shares Equity Securities that the Major Investors are entitled to obtain pursuant to subsection 2.4(bSection 3.2(b) are not elected to be obtained as provided in subsection 2.4(bSection 3.2(b) hereof, the Company may, during the ninety sixty (9060) day period following the expiration of the period provided in subsection 2.4(bSection 3.2(b) hereof, offer the remaining unsubscribed portion of such Shares Equity Securities to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares Equity Securities within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares Equity Securities shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 3.1(a) shall not be applicable to (i) the issuance or sale issuances of shares of Common Stock (or options therefor) capital stock of the Company that are not deemed to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services be “Additional Stock” pursuant to plans or agreements approved by Article IV, Section B.4(d)(ii) of the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting AgreementArticles of Incorporation, by and between as the Company and certain stockholders, dated as of the date hereof, collectively, same may be amended (the “Preferred DirectorsRestated Charter”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering shares of Shares is otherwise being offered only to accredited investorsthe Company’s Series F Preferred Stock sold pursuant Purchase Agreement.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Invuity, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.3, the term “Major Investor” Investor includes any general partners partners, managing members and affiliates of a Major Investor, including Affiliated Funds. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar Within 20 days after delivery of the giving of RFO Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Preferred Stock issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor bears to the total number of shares of Common Preferred Stock issued and held by all Major Investors. Such purchase shall be completed at the same closing as that of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)any third party purchasers or at an additional closing. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) -day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Preferred Stock issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Preferred Stock issued and held by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 30 days of after the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to (i) the issuance or sale of shares of Common Stock Exempted Securities (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and the Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); Certificate) or (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of any shares of Common Series B Preferred Stock registered under the Act, (iii) the issuance of securities issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) as the issuance of stock, warrants or other securities or rights same may be amended from time to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investorstime. In addition to the foregoing, the right of first offer in this Section 2.4 2.3 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares securities issuance, if (i) at the time of such offeringsubsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Securities Act, and (ii) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Tracon Pharmaceuticals, Inc.), Investors’ Rights Agreement (Tracon Pharmaceuticals, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held Registrable Securities then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include or the affirmative vote Compensation Committee of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as Board of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 F Preferred Stock pursuant to the Series 7 Purchase F Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-other than equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote that, with unanimous approval of the Major Investors holding greater than fifty percent (50%) Company’s Board of Directors, are not offered to any existing stockholder of the Registrable Securities then held by all Major InvestorsCompany. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act Act, and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund or institutional investor may assign or transfer such rights to its Affiliatesan affiliated venture capital fund or institutional investor, as applicable, or a venture capital fund under common investment management.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering Offering, as that term is defined in the Company’s Certificate of Incorporation (as amended from time to time) or (ii) a Liquidation Event, as that term is defined in the Company’s Certificate of Incorporation (as amended from time to time).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (FireEye, Inc.), Investors’ Rights Agreement (FireEye Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.5, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.5, the term “Major Investor” includes any (i) general partners and affiliates of a Major InvestorInvestor and (ii) the Founders. A Major Investor (excluding the Founders) shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of the Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b2.5(b) are not elected to be obtained as provided in subsection 2.4(b2.5(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b2.5(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.5 shall not be applicable to (i) the issuance or sale issuances of shares of Common Carve Out Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and the Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); Certificate) or (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 E Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 2.5 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 2.5 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital or other investment fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 2.5 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation EventEvent in which the consideration received by the Investors is in the form of cash and/or marketable securities.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Guardant Health, Inc.), Investors’ Rights Agreement (Guardant Health, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4Except as otherwise set forth herein, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 3.4 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty fifteen (2015) calendar days after receipt of the giving of Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) (such Major Investor’s “Pro Rata Share”). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewiseexercise its rights hereunder to purchase its pro rata portion of the Shares. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor bears to the total number of shares of Common Stock of the Company (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Fully Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)Investors.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety forty-five (9045) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of sell the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) reserved for issuances to employees, directors, officers, employees and consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to such arrangements, contracts or plans recommended by management and approved by the Board of Directors, (ii) the issuance of securities in connection with an acquisition of another business entity by the Company by merger, purchase of substantially all of the assets or agreements other reorganization approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between whereby the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity; (iii) the issuance of securities to financial institutions or lessors in connection with commercial credit arrangements, equipment financings or similar transactions approved by the Company’s Board of Directors, (iv) the Series G Registrable Securities then held issued pursuant to the Purchase Agreement, (v) the issuance of securities in a public offering, (vi) the issuance of securities pursuant to currently outstanding options, warrants, notes, or other rights to acquire securities of the Company, (vii) the issuance of securities in connection with corporate partnering transactions on terms approved by all Major Investorsthe Board of Directors (including at least the director elected by the holders of Series C Registrable Securities and the director elected by the holders of Series D Registrable Securities), or (viii) stock splits, stock dividends or like transactions. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares if (i) at the time offer and sale to such Major Investor would cause the Company to be in violation of applicable federal or state securities laws by virtue of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsoffer or sale without any available exemption therefrom.
(e) The rights provided in right of first offer under this Section 2.4 may not be assigned or transferred transferred, except that (i) such right is assignable by any Major Investor; provided, however, that a each Major Investor that is a to any affiliated venture capital fund may assign or transfer any wholly owned subsidiary or parent of, or to any corporation or entity that is, within the meaning of the Act, controlling, controlled by or under common control with, any such rights to its AffiliatesMajor Investor, and (ii) such right is assignable between and among Major Investors.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation earlier to occur of (i) a Qualified Public the Initial Offering or (ii) a Liquidation Eventthe consummation of the merger or consolidation of the Company or any subsidiary of the Company with or into another entity (except one in which the holders of capital stock of the Company as constituted immediately prior to such merger or consolidation continue to hold at least 50% of the voting power of the capital stock of the Company or the surviving or acquiring entity in substantially the same relative proportions).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Inogen Inc), Investors’ Rights Agreement (Inogen Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.5, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.5, the term “a Major Investor includes any partners, members, affiliates and affiliated venture funds of such Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (the “Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price price, terms and terms the identity of the third party offeror, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within Within twenty (20) calendar days after the giving of the Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of shares of Preferred Stock of the Company then held, held by such Investor Major Investor, plus any other shares of capital stock of the Company then held by such Major Investor, bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all outstanding convertible and exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it under this Section 2.5 (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day 10)-day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held issued upon conversion of shares of Preferred Stock of the Company then held, or issuable upon conversion of all Preferred Stock then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held then issued and held, or issuable upon conversion of the Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) day period following the expiration of the period periods provided in subsection 2.4(b2.5(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than thosethan, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty ninety (6090) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.5 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for exempted from the primary purpose definition of soliciting or retaining their services pursuant to plans or agreements approved by “Additional Shares of Common Stock” in the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain then-existing Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as Certificate of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsIncorporation.
(e) The rights provided right of first offer set forth in this Section 2.4 2.5 may not be assigned or transferred transferred, except that such right is assignable by each Investor to any Major wholly owned subsidiary or parent of, or to any corporation or entity that is, within the meaning of the Act, controlling, controlled by or under common control with, any such Investor or to any Permitted Transferees of such Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants right of first offer set forth in this Section 2.4 2.5 shall terminate and be of no further force or effect lapse upon the consummation earliest to occur of (i) a Qualified Public Offering or an initial public offering of the Company’s Common Stock; and (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (SolarEdge Technologies Inc), Investors’ Rights Agreement (SolarEdge Technologies Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock other than in connection with an Excluded Issuance (including, without limitation, any unit as defined in the Company’s Articles of debt or equity securitiesIncorporation as in effect on the date hereof) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 10 calendar days after delivery of the giving of RFO Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred all convertible or exercisable securities then held (other than any shares of Common Stock then heldissuable to employees, consultants or directors pursuant to a stock option plan, restricted stock plan, or other stock plan), by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities, other than any shares of Common Stock issuable to employees, consultants or directors pursuant to a stock option plan, restricted stock plan, or other stock plan). Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing thereunder. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares Shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) 5-day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion and exercise of all convertible or exercisable securities then held, by such Fully-Exercising Major Investor bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all vested convertible or exercisable securities) issued and exercisable securities held, or issuable upon conversion of the Preferred Stock then outstanding) bears to the number of shares of Common Stock held held, by all Fully-Exercising Major Investors who elect to purchase such unsubscribed Shares. If Catalyst Investors QP II, L.P. or any of its Affiliates (assuming full conversion and “Catalyst”), Bessemer Venture Partners VII L.P. or any of its Affiliates (“BVP”), Institutional Venture Partners XIII, L.P. or any of its Affiliates (“IVP”), W Capital or Montreux exercise their right to purchase Shares in accordance with this Section 3.4, the closing of all convertible and exercisable securities then outstandingthe sale of such Shares shall not occur any sooner than 14 business days after the expiration of the period provided in this subsection 3.4(b), unless Catalyst, BVP, IVP, W Capital or Montreux, as applicable, consents to a shorter period.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) -day period following the expiration of the period provided in subsection 2.4(b3.4(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 90 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 3.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offeringsubsequent securities issuance, the such Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Securities Act, and (ii) such offering of Shares the securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Notwithstanding the foregoing, a Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants ’s right of first offer set forth in this Section 2.4 3.4 shall terminate and not be affected in any manner for any subsequent offering of no further force or effect upon the consummation Shares if such Major Investor fails to be a Fully-Exercising Investor with respect to any consummated offering of (i) a Qualified Public Offering or (ii) a Liquidation EventShares subject to this Section 3.4.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (MINDBODY, Inc.), Investors’ Rights Agreement (MINDBODY, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.43.4, the term “Major Investor” includes any general partners and affiliates Affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of rights to acquire securities or debt convertible, exchangeable or equity exercisable for securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock Registrable Securities issued and held, or issuable upon held by such Major Investor (assuming full conversion of Preferred Stock all convertible securities then held, by such Investor outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding, including the Preferred Stock). The At the expiration of such twenty (20) calendar day period, the Company shall promptly, in writing, inform notify each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) calendar day period commencing after the Company has given such information is givennotice to the Fully-Exercising Investors, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held by all Fully-Exercising Major Investors of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)) issued and held, or issuable upon conversion of the Preferred Stock then held, by all the Fully-Exercising Investors who wish to purchase some of the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(bSection 3.4(b) of this Agreement are not elected to be obtained as provided in subsection 2.4(bSection 3.4(b) hereofof this Agreement, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(bSection 3.4(b) hereofof this Agreement, offer the remaining unsubscribed portion of such Shares to any person Person or persons Persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 3.4 shall not be applicable to (i) shares excluded from the issuance or sale definition of shares of Common Additional Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended the Restated Certificate) and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities sold pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 3.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 3.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund or other investment fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Omada Health, Inc.), Investors’ Rights Agreement (Omada Health, Inc.)
Right of First Offer. (a) Subject to the terms and conditions specified in this Section 2.43.3, the Company hereby grants to each Investor, for so long as an Investor holds at least 1,000,000 shares of Common Stock issued or issuable upon conversion of the Preferred Stock (as appropriately adjusted for any stock split, dividend, combination or other recapitalization or like transaction) (such Investor, a “Major Investor a Investor”), the right of first offer with respect to future sales issuances by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time following the date hereof that the Company proposes to offer or issue any shares of, or securities convertible into or exchangeable or exercisable for of any shares of, class of its capital stock (including, without limitation, or any unit of debt or equity securities) Convertible Securities (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) . The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) 5.6 to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares. If any prospective purchaser has offered to pay for any Shares with property, services or any other non-cash consideration, then the Major Investors shall nevertheless have the right to pay for such Shares with cash in an amount equal to the fair market value of the non-cash consideration offered by the prospective purchaser, where the fair market value of such non-cash consideration shall be conclusively determined in good faith by the Board.
(b) By written notification received by the Company Company, within twenty (20) calendar days after delivery of the giving of Noticenotice, each the Major Investor may elect to purchase, at the price and on the terms specified in the Noticenotice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then then-outstanding (assuming full conversion and exercise of all outstanding convertible and exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors Investor were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion of Preferred Stock then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of the Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain purchase pursuant to subsection 2.4(bSection 3.3(b) are not elected to be obtained purchased as provided in subsection 2.4(bSection 3.3(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(bSection 3.3(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Noticenotice. If the Company does not enter into an a definitive binding agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 3.3 shall not be applicable to the Exempted Securities (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and the Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”Certificate); .
(iie) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to Notwithstanding the foregoing, the right of first offer in this Section 2.4 3.3 shall not be applicable to any Major Investor with respect to any Investor in any subsequent offering issuance of Shares if if: (i) at the time of such offeringsubsequent issuance of Shares, the such Major Investor is not an “accredited investor,” investor as that term is then defined in Rule 501(a) of Regulation D promulgated under the Securities Act and (ii) such offering subsequent issuance of Shares is otherwise being offered only to accredited investorsinvestors as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (IDEAYA Biosciences, Inc.), Investors’ Rights Agreement (Ideaya Biosciences, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defineddefined below). For purposes of this Section 2.43.4, the term “Major Investor” includes any general partners and affiliates Affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The At the expiration of such twenty (20) day period, the Company shall promptly, in writing, inform promptly notify each Major Investor that elects to purchase or acquire all the shares Shares available to it (each, a “Fully-Fully Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given such information is givennotice, each Fully-Fully Exercising Major Investor may 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 Shares for which Major Investors were entitled to subscribe, subscribe but which that were not subscribed for by the Major Investors, that Investors which is equal to the proportion that the number of shares of Common Stock of the Company issued and held by such Fully-Fully Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock of the Company then issued and held by all Fully-Fully Exercising Major Investors who wish to purchase such unsubscribed Shares (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The closing of any sale pursuant to this Section 3.4(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 Shares pursuant to Section 3.4(c).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(bSection 3.4(b) of this Agreement are not elected to be obtained as provided in subsection 2.4(bSection 3.4(b) hereofof this Agreement, the Company may, during the ninety (90) day 90)-day period following the expiration of the period provided in subsection 2.4(bSection 3.4(b) hereofof this Agreement, offer the remaining unsubscribed portion of such Shares to any person Person or persons Persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 3.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”)Board; (ii) the issuance of securities pursuant to a bona fide, firmly an underwritten public offering of shares of Common Stock registered under the Act, ; (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, securities; (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), ; (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights pursuant to persons any equipment leasing arrangement or entities with debt financing arrangement, which arrangement is approved by the Company has business relationships, provided such issuances are Board and is primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), purposes; or (viivi) the issuance of securities to non-Affiliates that are not offered to any existing stockholder of the Company and are issued with unanimous approval of the Board and such approval of the Board specifically deemed states that such securities shall not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors3.4. In addition to the foregoing, the right of first offer in this Section 2.4 3.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (iA) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (iiB) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 3.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is or is an Affiliate of a venture capital fund, private equity fund or other investment fund may assign or transfer such rights to its Affiliates.
(f) In the event that the rights of an Advised Investor to purchase New Securities under this Section 3.4 are waived with respect to a particular offering of New Securities without such Advised Investor’s prior written consent (a “Waived Investor”) and any Major Investor that participated in waiving such rights actually purchases New Securities in such offering, then the Company shall grant, and hereby grants, each Waived Investor the right to purchase, in a subsequent closing of such issuance on substantially the same terms and conditions, the same percentage of its full pro rata share of such New Securities as the highest percentage of any such purchasing Major Investor.
(g) The covenants set forth in this Section 2.4 3.4 shall terminate and be of no further force or effect upon the consummation of (i) the Company’s sale of its Common Stock or other securities pursuant to Registration Statement under the Act (other than a Qualified Public Offering registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option, stock purchase or similar plan or a SEC Rule 145 transaction) or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Peloton Interactive, Inc.), Investors’ Rights Agreement (Peloton Interactive, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.44.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company hereby grants shall first make an offering of such New Securities to each Major Investor a right of first offer in accordance with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes following provisions of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners partners, members and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:.
(a) The Company shall deliver a notice notice, in accordance with the provisions of Section 3.5 6.5 hereof, (the “Offer Notice”) to each of the Major Investors stating (i) its bona fide intention to offer such SharesNew Securities, (ii) the number of such Shares New Securities to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such SharesNew Securities.
(b) By written notification received by the Company Company, within twenty (20) calendar days after mailing of the giving of Offer Notice, each of the Major Investor Investors may elect to purchasepurchase or obtain, at the price and on the terms specified in the Offer Notice, up to that portion of such Shares that New Securities which equals the proportion that the number of shares of Common Stock issued and held, and directly or indirectly issuable upon conversion of the Series B Preferred Stock and/or Series A Preferred Stock (and any other securities convertible into, or otherwise exercisable or exchangeable for, shares of Common Stock) then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all outstanding convertible and or exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares New Securities for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, that Investors which is equal to the proportion that the number of shares of Common Stock held issued and held, or directly or indirectly issuable upon conversion of Series B Preferred Stock and/or Series A Preferred Stock then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, or directly or indirectly issuable upon conversion of the Series B Preferred Stock and/or Series A Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)who wish to purchase such unsubscribed shares.
(c) If all Shares that Major Investors are entitled New Securities referred to obtain pursuant to subsection 2.4(b) in the Offer Notice are not elected to be purchased or obtained as provided in subsection 2.4(bSection 4.1(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(bSection 4.1(b) hereof, offer sell the remaining unsubscribed portion of such Shares New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than thosethan, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the Shares sell such New Securities within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares New Securities shall not be sold or offered unless first reoffered to the Major Investors in accordance herewithwith this Section 4.1.
(d) The right of first offer in this Section 2.4 4.1 shall not be applicable to to: (i) the issuance or sale of up to 14,200,000 shares of Common Stock (issued or options therefor) deemed issued to employeesemployees or directors of, directorsor consultants to, consultants and other service providers for the primary purpose Company or any of soliciting or retaining their services its subsidiaries pursuant to plans a plan, agreement, or agreements arrangement approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Company less a number of shares equal to the number of shares of Series 4 DirectorA Preferred Stock issued or deemed issued to ▇▇▇▇▇ ▇▇▇▇▇ as described in clause (ii) of this paragraph (d) which remain outstanding, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”)subject to outstanding options; (ii) the issuance up to 1,609,436 shares of securities Series A Preferred Stock issued or deemed issued to ▇▇▇▇▇ ▇▇▇▇▇ pursuant to a bona fide, firmly underwritten public offering of compensatory restricted stock agreement or option agreement approved by the Board; (iii) shares of Common Stock registered under the Act, issued in an IPO; (iiiiv) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities; (v) securities outstanding as issued in connection with any stock split or stock dividend of the date hereof, Company; (ivvi) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwiseotherwise or pursuant to a joint venture agreement, as approved by the Company’s Board Board, including the director elected solely by holders of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase AgreementB Preferred Stock, voting as a separate class (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred “Series B Director”), ; or (vii) the issuance of securities shares to non-Affiliates that are specifically deemed “Additional Purchasers” or “Insight” pursuant to Section 1.3 of the Purchase Agreement; (viii) the issuance of shares of Class A Common Stock or Series B1 Preferred Stock, or the grant of options or warrants therefor, in connection with any commercial relationship of the Company provided such issuance is not to be subject to the right primarily for capital raising purposes or any present or future borrowing, line of first offer credit, leasing or similar financing arrangement approved in this Section 2.4 each case by the written consent or affirmative vote Board of Directors of the Major Investors holding greater than fifty percent Company including the Series B Director; and (50%ix) any other New Securities expressly so designated (in a consent separate from any other stockholder approval) by the holders of a majority of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) voting power of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsSeries B Preferred Stock.
(e) The rights provided right of first offer set forth in this Section 2.4 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in this Section 2.4 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall terminate and be occur within sixty (60) days of no further force or effect upon the consummation date of (i) a Qualified Public Offering or (ii) a Liquidation Eventnotice to the Major Investors.
Appears in 2 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Newegg Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes (i) if the Major Investor is a partnership, corporation or other entity, any general partners and affiliates affiliates, including affiliated venture capital funds, of a such Major Investor, or (ii) if the Major Investor is an individual, trusts for the benefit of such Major Investor or his or her immediate family members. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates, immediate family members or trusts in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“Notice”) to the Major Investors, and, in the case of a Down-Round Financing (as defined below), the former Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty fifteen (2015) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issuable or issued and held, or issuable upon conversion of the Preferred Stock then held, and held by such Major Investor (but excluding any Special Mandatory Conversion Shares) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstandingoutstanding and including any Special Mandatory Conversion Shares). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten five (105) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock issuable or issued upon conversion of the Preferred Stock and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstandingbut excluding any Special Mandatory Conversion Shares) bears to the total number of shares of Common Stock issuable or issued upon conversion of the Preferred Stock and held by all Fully-Exercising Major Investors who wish to purchase some of the unsubscribed shares (assuming full conversion and exercise of all convertible and exercisable securities then outstandingbut excluding any Special Mandatory Conversion Shares).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree Major Investor than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options or warrants therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to written plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorDirectors, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) securities issued pursuant to a stock dividend or distribution on Preferred Stock, stock split or similar reorganization, (iii) the issuance of securities pursuant to in a bona fide, firmly underwritten public offering of shares of Common Stock registered under the ActQualified Public Offering, (iiiiv) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (ivv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, otherwise that is approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director)Directors, (vvi) the issuance and sale of Series 7 D Preferred Stock pursuant to the Series 7 Purchase D Agreement, (vivii) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationshipspursuant to corporate partnering agreements, provided such issuances are primarily for non-other than equity financing purposes (which approval shall include and are approved by the affirmative vote Board of a Preferred Director)Directors of the Company, or (viiviii) the issuance of securities issued or issuable pursuant to non-Affiliates that equipment lease financings or bank credit arrangements, provided such issuances are specifically deemed not to be subject to the right of first offer in this Section 2.4 primarily for other than equity financing purposes and are approved by the written consent or affirmative vote Board of Directors of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major InvestorsCompany. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliatesan affiliated venture capital fund or partners of such funds.
(f) Notwithstanding any of the foregoing in this Section 2.4, if the Company proposes to offer any Shares (excluding shares described in Section 2.4(d)) in an equity financing with a primary purpose of raising capital for the Company and at a price per share less than that received by the Company in any previous equity financing (as adjusted for stock splits, stock dividends, recapitalizations or the like) (such financing, a “Down-Round Financing”), then a right of first offer to participate in such Down-Round Financing shall apply with respect to any Special Mandatory Conversion Shares held by any Major Investor or former Major Investor. In such event, each such Major Investor or former Major Investor may elect to purchase, in addition to any other right of first offer with respect to the issuance of the Shares held by such Major Investor pursuant to Section 2.4(b), at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that one-half (1/2) of the number of Special Mandatory Conversion Shares held by such Major Investor or former Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding and including any Special Mandatory Conversion Shares). The limited right of first offer set forth in this Section 2.4(f) shall be exercised by any such Major Investor or former Major Investor that this subsection applies to by providing the Company with written notification within fifteen (15) calendar days after the Company has delivered the Notice.
(g) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the earlier of the consummation of (i) a the Qualified Public Offering or (ii) a Liquidation Event, as that term is defined in the Company’s Certificate of Incorporation (as amended from time to time).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Alder Biopharmaceuticals Inc), Investors’ Rights Agreement (Alder Biopharmaceuticals Inc)
Right of First Offer. Subject to the terms and conditions specified in of this Section 2.43.1 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company hereby grants shall first offer such New Securities to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major InvestorShareholder. A Major Investor Shareholder shall be entitled to apportion the right of first offer hereby granted to it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time , among (a) itself, (b) its Associates and Affiliates, and (c) its beneficial interest holders, such as limited partners, members or any other Person having "beneficial ownership," as such term is defined in Rule 13d-3 promulgated under the Company proposes Exchange Act, of such Major Shareholder ("Shareholder Beneficial Owners"); provided that, each such Associate, Affiliate or Shareholder Beneficial Owner: (i) is not a Competitor, unless such party's purchase of New Securities is otherwise consented to offer any shares ofby the Board, or securities convertible and (ii) agrees to enter into or exchangeable or exercisable for any shares ofthe Shareholder Agreements, its capital stock as a "Shareholder" under each such Shareholder Agreement (including, without limitationprovided that, any unit of debt or equity securities) (“Shares”Competitor shall not be entitled to any rights as a Major Shareholder under Section 2.1 and this Section 3.1), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:.
(a) The Company shall deliver a give notice in accordance with Section 3.5 (“the "Offer Notice”") to the Investors each Major Shareholder, stating (i) its bona fide intention to offer such SharesNew Securities, (ii) the number of such Shares New Securities to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such SharesNew Securities.
(b) By written notification received by to the Company within twenty (20) calendar 20 days after the giving of NoticeOffer Notice is given, each Major Investor Shareholder may elect to purchasepurchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such Shares New Securities that equals the proportion that the number of shares of Common Stock issued and held, Shares then held by such Major Shareholder (including all Common Shares then issuable (directly or issuable indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock any Derivative Securities then held, held by such Investor Major Shareholder) bears to the total number of shares of Common Stock of the Company Shares then outstanding (assuming full conversion and exercise and/or exercise, as applicable, of all convertible and exercisable securities then outstandingDerivative Securities (including any allocated but unexercised options in the capital of the Company)). The At the expiration of such 20 day period, the Company shall promptly, in writing, inform promptly notify each Major Investor Shareholder that elects to purchase or acquire all the shares New Securities available to it (each, a “Fully-"Fully Exercising Major Investor”Shareholder") of the failure of any other Major Investor’s failure Shareholder who is not a Founder to do likewise. During the ten (10) 10 day period commencing after the Company has given such information is givennotice, each Fully-Fully Exercising Major Investor may Shareholder may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of New Securities specified above, up to that portion of the Shares New Securities for which Major Investors Shareholders who are not Founders were entitled to subscribe, subscribe for but which that were not subscribed for by the such Major Investors, Shareholders that is equal to the proportion that the number Common Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of shares of Common Stock held any Derivative Securities then held, by such Fully-Fully Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) Shareholder bears to the number Common Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of shares of Common Stock held any Derivative Securities then held, by all Fully-Fully Exercising Major Investors Shareholders who wish to purchase such unsubscribed New Securities. The closing of any sale pursuant to this Section 3.1(b) shall occur on the later of: (assuming full conversion i) 90 days after the date that the Offer Notice is given; and exercise (ii) the date of all convertible and exercisable securities then outstandinginitial sale of New Securities pursuant to Section 3.1(c).
(c) If all Shares that Major Investors are entitled New Securities referred to obtain pursuant to subsection 2.4(b) in the Offer Notice are not elected to be obtained purchased or acquired as provided in subsection 2.4(b) hereofSection 3.1(b), the Company may, during the ninety (90) -day period following the expiration of the period periods provided in subsection 2.4(b) hereofSection 3.1(b), offer and sell the remaining unsubscribed portion of such Shares New Securities to any person Person or persons Persons at a the same price not less than that, and upon the same terms no more favorable to the offeree than those, as specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the Shares New Securities within such period, or if such agreement is not consummated within sixty (60) 30 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares New Securities shall not be offered unless first reoffered to the Major Investors Shareholders in accordance herewithwith this Section 3.1.
(d) The right of first offer in this Section 2.4 3.1 shall not be applicable to to:
(i) Common Shares or Derivative Securities issued as a dividend or distribution on any shares in the capital of the Company;
(ii) Common Shares or Derivative Securities issued by reason of a share split;
(iii) Common Shares or Derivative Securities issued to employees or directors of, or consultants or advisors to, the Company or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board;
(iv) Common Shares or Derivative Securities actually issued upon the exercise of other Derivative Securities, or Common Shares actually issued upon the conversion or exchange of Derivative Securities, in each case provided such issuance is pursuant to the terms of such Derivative Security and such Derivative Security was issued in accordance with this Section 3.1;
(v) Common Shares or sale of shares of Derivative Securities issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board;
(vi) Common Stock (Shares or options therefor) Derivative Securities issued to employees, directors, consultants and other suppliers or third-party service providers for in connection with the primary purpose provision of soliciting goods or retaining their services pursuant to plans or agreements transactions approved by the Company’s Board of Directors Board;
(which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director vii) Common Shares or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities Derivative Securities issued pursuant to the conversion acquisition of another corporation by the Company by amalgamation, arrangement, purchase of all or exercise of convertible or exercisable securities outstanding as substantially all of the date hereofassets or shares or other reorganization or to a joint venture agreement, provided that such issuances are approved by the Board; or
(ivviii) the issuance of securities Common Shares or Derivative Securities issued in connection with a bona fide business acquisition of sponsored research, collaboration, technology license, development, original equipment manufacturer (OEM), marketing or by the Company, whether by merger, consolidation, sale of assets, sale other similar agreements or exchange of stock or otherwise, strategic partnerships approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsBoard.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Subscription Agreement (Naqi Logix Inc.), Shareholder Rights Agreement (Naqi Logix Inc.)
Right of First Offer. Subject to the terms and conditions specified in of this Section 2.44.1 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company hereby grants shall first offer such New Securities to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined)and CDF. For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Each Major Investor and CDF shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates to it. in such proportions as it deems appropriate. Each time , among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership,” as such term is defined in Rule 13d-3 promulgated under the Company proposes to offer any shares ofExchange Act, of such Major Investor or securities convertible into or exchangeable or exercisable for any shares ofCDF, its capital stock (including, without limitation, any unit of debt or equity securities) as the case may be (“SharesBeneficial Owners”), the Company shall first make an offering of ; provided that each such Shares Affiliate or Beneficial Owner agrees to each Major Investor in accordance with the following provisions:enter into this Agreement.
(a) The Company shall deliver a give notice in accordance with Section 3.5 (the “Offer Notice”) to the Investors each Major Investor and CDF, stating (i) its bona fide intention to offer such SharesNew Securities, (ii) the number of such Shares New Securities to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such SharesNew Securities.
(b) By written notification received by to the Company within twenty (20) calendar days after the giving of NoticeOffer Notice is given, each Major Investor or CDF, as the case may be, may elect to purchasepurchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such Shares that New Securities which equals the proportion that the number of Common Stock then held by such Major Investor or CDF, as the case may be (including all shares of Common Stock issued and held, or then issuable upon conversion or exercise of Preferred Stock any Derivative Securities then held, held by such Major Investor or CDF, as applicable, bears to the total number of shares of Common Stock of the Company then outstanding (assuming full including all shares of Common Stock then issuable upon conversion and or exercise of all convertible and exercisable securities any then outstandingoutstanding Derivative Securities). The At the expiration of such twenty (20) day period, the Company shall promptly, in writing, inform promptly notify each Major Investor and CDF, in each case that elects to purchase or acquire all the shares available to it (each, a “Fully-Fully Exercising Major Investor”) of any other Major Investor’s (or CDF’, as the case may be) failure to do likewise. During the ten (10) day period commencing after the Company has given such information is givennotice, each Fully-Fully Exercising Major Investor may 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 Shares New Securities for which Major Investors and CDF, as applicable, were entitled to subscribe, subscribe but which that were not subscribed for by the such Major Investors, that Investors or CDF which is equal to the proportion that the number of shares of Common Stock held issued and held, and issuable upon conversion or exercise of any other Derivative Securities then held, by such Fully-Fully Exercising Major Investor (assuming full bears to the Common Stock issued and held, and any other Common Stock then issuable upon conversion and or exercise of all convertible and exercisable securities Derivative Securities then outstanding) bears to the number of shares of Common Stock held held, by all Fully-Fully Exercising Major Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Subsection 4.1(b) shall occur within the later of thirty (assuming full conversion 30) days of the date that the Offer Notice is given and exercise the date of all convertible and exercisable securities then outstandinginitial sale of New Securities pursuant to Subsection 4.1(c).
(c) If all Shares that Major Investors are entitled New Securities referred to obtain pursuant to subsection 2.4(b) in the Offer Notice are not elected to be obtained purchased or acquired as provided in subsection 2.4(b) hereofSubsection 4.1(b), the Company may, during the ninety thirty (9030) day period following the expiration of the period periods provided in subsection 2.4(b) hereofSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such Shares New Securities to any person Person or persons Persons at a price not less than thatthan, and upon terms no more favorable to the offeree than thosethan, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the Shares New Securities within such period, or if such agreement is not consummated within sixty thirty (6030) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares New Securities shall not be offered unless first reoffered to the Major Investors nvestors and CDF in accordance herewithwith this Section 4.1.
(d) The right of first offer in this Section 2.4 4.1 shall not be applicable to to:
(i) the issuance or sale of shares of Common Stock (or options therefor) to employeesDerivative Securities issued by reason of a dividend, directorsstock split, consultants and split-up or other service providers for the primary purpose distribution on shares of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); Common Stock;
(ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under or Derivative Securities issued to employees or directors of, or consultants or advisors to, the ActCompany or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors;
(iii) shares of Common Stock actually issued upon the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities Derivative Securities outstanding as of the date hereof, in each case provided such issuance is pursuant to the terms of such Derivative Security;
(iv) shares of Common Stock or Derivative Securities issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the issuance Board of securities Directors;
(v) shares of Common Stock or Derivative Securities issued in connection with a bona fide business acquisition of sponsored research, collaboration, technology license, development, OEM, marketing or by the Company, whether by merger, consolidation, sale of assets, sale other similar agreements or exchange of stock or otherwise, strategic partnerships approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, Directors;
(vi) the issuance shares of stock, warrants or other securities or rights Common Stock issued pursuant to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or registration statement; or
(vii) shares of Common Stock or Derivative Securities which the issuance holders of securities to nonat least sixty-Affiliates that are specifically deemed six and two-thirds (66 2/3) of the Registrable Securities then outstanding agree shall not to be subject to the right of first offer refusal in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors4.1.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Celsius Holdings, Inc.), Investors' Rights Agreement (Celsius Holdings, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For the purposes of this Section 2.4, the term “Major Investor” includes any general partners partner and affiliates Affiliates of a Major an Investor and transferee of an Investor. A Major An Investor shall be entitled to apportion the right of first offer hereby granted it among itself and itself, its partners and its Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares ofof its capital stock (including, without limitation, any such shares or securities issued in connection with debt securities), or debt or equity securities convertible into or exchangeable or exercisable for any shares of, its of such capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Investors each Investor stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that (i) the number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion or exercise of Preferred Stock the equity of the Company then held, held by such Investor bears to (ii) the total number of issued shares of Common Stock of the Company Company, on an as converted basis then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding“Pro-Rata Amount”). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares Shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may may, by written notice to the Company elect to purchase up to that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major such Investors, that is equal to the proportion that the number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion or exercise of the equity of the Company then held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion or exercise of the equity of the Company then held by all Fully-Exercising Major Investors who wish to purchase some of the unsubscribed Shares. The closing of any sale pursuant to this subsection 2.4(b) shall occur within the later of ninety (assuming full conversion 90) days after the date that the Notice is given and exercise the date of all convertible and exercisable securities then outstandinginitial sale of new Shares pursuant to subsection 2.4(c).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety sixty (9060) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer and sell the remaining unsubscribed portion of such Shares to any person or persons at a price not less an amount equal to or greater than thatthe price, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty twenty (6020) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employeesExcluded Securities, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and the Restated Voting AgreementCertificate, by and between the Company and certain stockholders, dated as set forth in Subsections 4(d)(i)(B)(1)-(8) of Article IV(B) of the date hereof, collectively, the “Preferred Directors”); Restated Certificate and (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 D Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent an offering of Shares if (iA) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (iiB) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or and transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights and shall be linked to its Affiliatesthe Preferred Stock.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public the Initial Offering or (ii) a Liquidation Event, as that term is defined in the Restated Certificate.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Astera Labs, Inc.), Investors’ Rights Agreement (Astera Labs, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty ten (2010) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock issued and held by all Fully-Exercising Major Investors who wish to purchase some of the unsubscribed shares (assuming full conversion and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Series B-3 Preferred Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 B-5 Preferred Stock pursuant to and in accordance with the Series 7 Purchase Agreement, B-3 & B-5 Agreement and (viii) Exempted Securities (as such term is defined in the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred DirectorRestated Certificate), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the earlier to occur of the consummation of (i) a Qualified Public Offering Offering, as that term is defined in the Restated Certificate, or (ii) a Liquidation Event, as that term is defined in the Restated Certificate.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Qualtrics International Inc.), Investors’ Rights Agreement (Qualtrics International Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.45.3, the Company hereby grants to each Major Investor Holder holding any shares of Registrable Securities (each, an “Eligible Investor”) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.45.3, the term “Major Eligible Investor” includes any general partners and affiliates Affiliates of a Major an Eligible Investor. A Major An Eligible Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate, so long as such apportionment does not cause the loss of the exemption under Section 4(2) of the Act or any similar exemption under applicable state securities laws in connection with such sale of Shares by the Company. Notwithstanding the foregoing, the Company disclaims any obligation to notify or otherwise apprise any such Affiliate of any offer made or rights held hereby unless such Affiliate is specifically identified by a Holder and disclosed to the Company in writing, and the Company disclaims any liability with respect to any apportionment made by any Holder hereby. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (the “Shares”), the Company shall first make an offering of such Shares to each Major Eligible Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 6.5 (the “Notice”) to the Eligible Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty (20) calendar days after receipt of the giving of Notice, each Major the Eligible Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or and issuable upon conversion of the Preferred Stock then held, by such Eligible Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)on a fully-diluted basis. The Company shall promptly, in writing, inform each Major Eligible Investor that elects to purchase which purchases all the shares available to it (a “Fully-Exercising Major Eligible Investor”) of any other Major Eligible Investor’s failure to do likewise. During the ten (10) day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Eligible Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Eligible Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, that Eligible Investors which is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion of Preferred Stock then held, by such Fully-Exercising Major Eligible Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of Preferred Stock then held, by all Fully-Exercising Major Eligible Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Eligible Investors are entitled to obtain pursuant to subsection 2.4(bSection 5.3(b) are not elected to be obtained as provided in subsection 2.4(bSection 5.3(b) hereof, the Company may, during the ninety one hundred eighty (90180) day period following the expiration of the period provided in subsection 2.4(bSection 5.3(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Eligible Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 5.3 shall not be applicable to to:
(i) the issuance of shares of securities pursuant to a split or sale subdivision of the outstanding shares of Common Stock or the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in additional shares of Common Stock or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly, additional shares of Common Stock (hereinafter referred to as “Common Stock Equivalents”) without payment of any consideration by such holder for the additional shares of Common Stock or the Common Stock Equivalents (including the additional shares of Common Stock issuable upon conversion or exercise thereof);
(ii) the issuance of shares of Common Stock or options therefor to employees, consultants, officers, directors or vendors (if in transactions with primarily non-financing purposes) of the Company directly or pursuant to a stock option plan or restricted stock purchase plan approved by the Board of Directors of the Company;
(iii) the issuance of shares of Common Stock (or options thereforA) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering under the Act before which or in connection with which all outstanding shares of preferred stock will be automatically converted to Common Stock, or (B) upon exercise of warrants or rights granted to underwriters in connection with such a public offering;
(iv) the issuance of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, hereof or subsequently issued pursuant to this Section 5.3;
(ivv) the issuance of securities shares of Common Stock in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors (which approval shall include of the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, Company;
(vi) the issuance or sale of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, relationships provided such issuances are for other than primarily for non-equity financing purposes and provided that at the time of any such issuance, the aggregate of such issuance and similar issuances in the preceding twelve (which approval shall include 12) month period do not exceed five percent (5%) of the affirmative vote then outstanding Common Stock of a Preferred Directorthe Company (assuming full conversion and exercise of all convertible and exercisable securities), or unless approved by the Board of Directors; or
(vii) the issuance shares of Common Stock issued or issuable in connection with any transaction where such securities to non-Affiliates that so issued are specifically deemed not to be subject to exempted from the right of first offer in this Section 2.4 5.3 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) holders of a majority of the Registrable Securities then held by all Major Investors. Primary Non-Exeter Preferred; provided, however, that in the event of any issuance contemplated in this Section 5.3(d) to, or for the benefit of, any Competitor, VCO shall be entitled to exercise its right of first offer in respect of such issuance.
(e) In addition to the foregoing, the right of first offer in this Section 2.4 5.3 shall not be applicable with respect to any Eligible Investor in and any subsequent offering of Shares securities issuance, if (i) at the time of such offeringsubsequent securities issuance, the Eligible Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Act, and (ii) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(ef) The rights provided right of first offer set forth in this Section 2.4 5.3 may not be assigned or transferred transferred, except, other than with respect to a competitor of the Company, as reasonably determined by any Major Investor; provided, howeverthe Company, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or such right is assignable by each Eligible Investor to any Affiliate of such Eligible Investor, and (ii) such right is assignable to a Liquidation Eventtransferee or assignee who holds after such transfer at least two hundred fifty thousand (250,000) shares of Registrable Securities (subject to appropriate adjustment for any recapitalization).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Arcadia Biosciences, Inc.), Investors’ Rights Agreement (Arcadia Biosciences, Inc.)
Right of First Offer. Subject to applicable securities laws and the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates Affiliate of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) (the “Pro Rata Share”). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstandingheld by such Fully-Exercising Investor) bears to the total number of shares of Common Stock of the Company held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingheld by all Fully-Exercising Investors).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) therefore to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to equity incentive plans or agreements similar arrangements approved by the Company’s Board of Directors (which approval shall include the affirmative vote including at least two of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, directors elected by and between the Company and certain stockholders, dated as holders of the date hereof, collectively, the “Preferred Directors”Stock); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the ActAct in connection with which all shares of Preferred Stock are (or have previously been) converted to shares of Common Stock, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities issued in compliance with this Section 2.4, including all securities outstanding as of on the date hereofof this Agreement, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, provided such issuances are approved by the Company’s Board of Directors (which approval shall include including at least two of the vote directors elected by the holders of a Preferred Director)Stock) and not primarily for equity financing purposes, or (v) the issuance and sale of Series 7 G Preferred Stock pursuant to the Series 7 Purchase G Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-other than equity financing purposes and are approved by the Board of Directors (which approval shall include including at least two of the affirmative vote directors elected by the holders of a Preferred DirectorStock), or (vii) the issuance of securities pursuant to non-Affiliates any equipment leasing arrangement or debt financing from a bank or similar institution, provided that such issuances are specifically deemed not to be subject to the right of first offer in this Section 2.4 approved by the written consent or affirmative vote Board of Directors (including at least two of the Major Investors holding greater directors elected by the holders of Preferred Stock) and are for other than fifty percent (50%) of the Registrable Securities then held by all Major Investorsprimarily equity financing purposes. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not only be assigned or transferred by to the same parties, subject to the same restrictions as any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such of registration rights pursuant to its AffiliatesSection 1.11.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering bona fide initial public offering in connection with which all of the Company’s outstanding shares of Preferred Stock are converted to shares of Common Stock or (ii) a Liquidation Event, as that term is defined in the Company’s Restated Certificate of Incorporation (as amended from time to time).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Coupa Software Inc), Investors’ Rights Agreement (Coupa Software Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor Holder, provided that the Board of Directors has not reasonably determined that such Major Holder is a competitor of the Company (for the sake of clarity, (i) a Major Holder that is a venture capital fund or similar investment fund or entity shall not be deemed to be a competitor of the Company due to an investment in a portfolio company that is a competitor to the Company; (ii) each of GV 2016, L.P. and GV 2019, L.P. or any of their affiliated funds shall not be deemed to be a competitor solely as a result of any affiliation between such funds and Alphabet, Inc. (including any Affiliate of Alphabet, Inc.); (iii) Allianz Strategic Investments s.a.r.l. or any of its Affiliates shall not be deemed to be a competitor, (iv) Harel Insurance Company Ltd. or any of its Affiliates shall not be deemed to be a competitor, (v) XL Innovate Partners, L.P. or any of its Affiliates shall not be deemed to be a competitor and (vi) SoftBank Group Capital Limited or any of its Affiliates shall not be deemed to be a competitor), a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major InvestorHolder” includes any general partners and affiliates Affiliates of a Major InvestorHolder. A Major Investor Holder shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor Holder in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Investors Major Holder stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty fifteen (2015) calendar days after the giving of Notice, each Major Investor Holder may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Investor Major Holder (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor Holder that elects to purchase all the shares available to it (a “Fully-Exercising Major InvestorHolder”) of any other Major InvestorHolder’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor Holder may elect to purchase that portion of the Shares for which Major Investors Holders were entitled to subscribe, but which were not subscribed for by the Major InvestorsHolders, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) Holder bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of the Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise Holders who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors Holders are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person Person or persons Persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors Holders in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock Exempted Securities (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as Section 4(d)(ii) of Article IV(B) of the date hereofRestated Certificate), collectively, the “Preferred Directors”); and (ii) the issuance of securities pursuant to a bona fide, firmly an underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor Major Holder in any subsequent offering of Shares if (i) at the time of such offering, the Investor Major Holder is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major InvestorHolder; provided, however, that a Major Investor Holder that is (i) XL Innovate Fund, L.P., or (ii) a venture capital fund or similar investment fund or entity may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering (as defined in Section 4(b) of Article IV(B) of the Restated Certificate) or (ii) a Liquidation Event, as that term is defined in the Restated Certificate.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Lemonade, Inc.), Investors’ Rights Agreement (Lemonade, Inc.)
Right of First Offer. (a) Subject to the terms and conditions specified in this Section 2.47.1, the Company hereby grants to each Major Investor Purchaser a right of first offer with respect to participate in future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.47.1 and Section 7.4, the term “Major Investor” Purchaser includes any general partners or retired partners (including spouses and affiliates ancestors, lineal descendants and siblings of such partners or spouses who acquire Series B Shares or Common Stock issued upon conversion thereof by gift, will or intestate succession) of a Major InvestorPurchaser. A Major Investor Purchaser shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. .
(b) Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company shall first make an offering of a portion of such Shares (as determined in subsection (2) below) to each Major Investor Purchaser in accordance with the following provisions:
(a1) The Company shall deliver a written notice in accordance with Section 3.5 (“"Notice”") to the Investors Purchasers stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b2) By written notification received by the Company within twenty (20) Within 10 calendar days after receipt of the giving of Notice, each Major Investor any Purchaser may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion (such Purchaser's "Proportion") that the number of shares of Common Stock issued and held, or held by such Purchaser (including for such calculation any shares issuable upon conversion of Preferred Stock then held, by such Investor any capital stock convertible into Common Stock) bears to the total number of shares of Common Stock of the Company then outstanding held by the Purchasers and other persons who have been granted a right of first offer (assuming full for such calculation any shares issuable upon conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of capital stock convertible into Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingStock).
(c3) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, may during the ninety (90) 10-day period following the expiration of the 10-day period provided in subsection 2.4(b(2) hereof, offer the remaining unsubscribed portion of such Shares which the Purchasers have not elected to purchase to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within 90 days of the expiration of such 10-day period, or if such agreement is not consummated within sixty (60) 120 days following the expiration of the execution thereofsuch 10-day period, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors Purchasers in accordance herewith.
(d4) The right of first offer in this Section 2.4 7.1 shall not be applicable to (i) to the issuance or sale of shares of Common Stock (as adjusted to reflect any stock splits, combinations or options thereforother events involving the Common Stock) to employees, directors, consultants and other service providers for or members of the primary purpose Board of soliciting or retaining their services Directors pursuant to employee or director stock plans or agreements which are approved in writing by the Company’s 's Board of Directors Directors, (which approval shall include ii) to the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director Public Offering (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as Section 7.3 hereof) or to any offering of Shares after consummation of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the ActPublic Offering, (iii) to the issuance of securities pursuant to the conversion or exercise of presently outstanding convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) to any Common Stock issued upon conversion of the issuance Series B Preferred Stock, the Series M Preferred Stock or other series of securities in connection with a bona fide business acquisition Preferred Stock issued pursuant to the Certificate of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director)Incorporation, (v) to securities issued in connection with any acquisition or business combination transaction approved by the issuance and sale Board of Series 7 Preferred Stock pursuant to Directors of the Series 7 Purchase AgreementCompany, or (vi) the issuance of stock, warrants to securities issued in connection with equipment lease financings or other securities financings with commercial lenders or rights to persons or entities with which in strategic transactions involving the Company and other entities including joint ventures or marketing, distribution or development arrangements, in each case provided that any issuance pursuant to subsection (vi) has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 been approved by the written consent or affirmative vote Board of Directors of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsCompany.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Series B Preferred Stock Purchase Agreement (Genomic Solutions Inc), Series B Preferred Stock Purchase Agreement (Genomic Solutions Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor and the Major Investors Groups listed in Exhibit D hereto (as long as each Major Investors Group continues to hold in the aggregate at least 5% of the Company's voting rights) (collectively for the purpose of this Section 2.3, "Investors") a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled or a Major Investors Group who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners or affiliates, including Affiliated Funds and Affiliates any member of the Major Investors Groups, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor and each Major Investors Group in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors and to the shareholders designated as representatives for this purpose by each of the Major Investors Groups stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 15 calendar days after delivery of the giving of RFO Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock all convertible securities then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities), provided that a Major Investors Group may only elect to purchase at least 5% of the Shares. Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing thereunder. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) -day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion of all convertible securities then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held by all Fully-Exercising Major Investors then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 90 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors and the Major Investors Groups in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to (i) the issuance of securities in connection with stock dividends, stock splits or similar transactions; (ii) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for directors of the primary purpose of soliciting Company, directly or retaining their services pursuant to a stock option plan, restricted stock purchase plans or agreements other stock plan approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition acquisition, merger or similar transaction, the terms of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, which are approved by the Company’s Board of Directors Directors; (which approval shall include iv) the vote issuance or sale of a the Series D Preferred Director)Stock or the Common Stock issuable upon conversion of the Series A Preferred Stock, the Series A-1 Preferred Stock, the Series B Preferred Stock, the Series B-1 Preferred Stock, the Series C Preferred Stock and Series D Preferred Stock; (v) the issuance and sale of Series 7 Preferred Common Stock pursuant to the Series 7 Purchase Agreement, in a Qualified IPO; or (vi) the issuance of stock, warrants or other securities or rights which a majority of the directors determined should not entitle the Investors to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investorsoffer. In addition to the foregoing, the right of first offer in this Section 2.4 2.3 shall not be applicable with respect to any Major Investor in or to any member of a Major Investors Group and any subsequent offering of Shares securities issuance, if (ix) at the time of such offeringsubsequent securities issuance, the Major Investor or such member of the Major Investor Group is not an “accredited investor,” ”, as that term is then defined in Rule 501(a) of under the Act Securities Act, and (iiy) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investorsinvestors according to the unanimous written consent of the Company’s Board of Directors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (WhiteSmoke, Inc.), Investors’ Rights Agreement (WhiteSmoke, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.2, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.2, the term “Major Investor” Investor includes any general partners and partners, managing members or affiliates of a Major Investor, including Affiliated Funds. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty Within fifteen (2015) calendar days after delivery of the giving of RFO Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the sum of the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities). Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing thereunder. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten ten-day (10-day) day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion and exercise of all convertible or exercisable securities then held, by such Fully-Exercising Major Investor bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety forty-five-day (9045-day) day period following the expiration of the period provided in subsection 2.4(b2.2(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.2 shall not be applicable to (i) the issuance of securities in connection with stock dividends, stock splits or similar transactions; (ii) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for directors of the primary purpose of soliciting Company, directly or retaining their services pursuant to a stock option plan, restricted stock purchase plans or agreements other stock plan approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (iiiii) the issuance of securities pursuant to a bona fidefinancial institutions, firmly underwritten public offering equipment lessors, brokers or similar persons in connection with commercial credit arrangements, equipment financings, commercial property lease transactions or similar transactions approved by the Board of shares of Common Stock registered under the Act, Directors; (iiiiv) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities that are outstanding as of immediately following the date hereofSecond Closing, including without limitation, warrants, notes or options; (ivv) the issuance of securities in connection with a bona fide business acquisition acquisition, merger or similar transaction, the terms of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, which are approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, Directors; (vi) the issuance of stocksecurities to an entity as a component of any business relationship with such entity primarily for the purpose of (A) joint venture, warrants technology licensing or development activities, (B) distribution, supply or manufacture of the Company’s products or services, or (C) any other securities or rights to persons or entities with which the Company has business relationships, provided such issuances arrangements involving corporate partners that are primarily for non-equity financing purposes (other than raising capital, the terms of which approval shall include business relationship with such entity are approved by the affirmative vote Board of a Preferred Director), Directors; or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to with the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors then holding greater than fifty percent (50%) at least two-thirds of the Registrable Securities shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 2.2 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares securities issuance, if (i) at the time of such offeringsubsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Securities Act, and (ii) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investor Rights Agreement (Photoworks Inc /Wa), Investor Rights Agreement (Photoworks Inc /Wa)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.3, the term “Major Investor” Investor includes any general partners partners, managing members and affiliates of a Major Investor, including Affiliated Funds. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 20 calendar days after delivery of the giving of RFO Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the sum of the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities). Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing thereunder. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) -day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion and exercise of all convertible or exercisable securities then held, by such Fully-Exercising Major Investor bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to any issuance of Exempted Securities (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and the Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”Certificate); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 2.3 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares securities issuance, if (ix) at the time of such offeringsubsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Securities Act, and (iiy) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided right of first offer in this Section 2.4 2.3 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliateswaived with the written consent of the Company and the Required Investors.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Cardiodx Inc), Investors’ Rights Agreement (Cardiodx Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners partners, members, stockholders and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners partners, members, stockholders and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock Registrable Securities held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)Investors.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorDirectors, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, at an offering price of at least $3.33 per share (appropriately adjusted for any stock split, dividend, combination or other recapitalization occurring) and resulting in proceeds to the Company of at least $30,000,000 in the aggregate, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the CompanyCompany of a bona fide commercial operating entity, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 A Preferred Stock pursuant to the Series 7 Purchase A Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business strategic licensing relationships, provided such issuances are primarily for non-other than equity financing purposes (which approval shall include the affirmative vote of a Preferred Director)purposes, or (vii) the issuance Common Stock issued or deemed issued pursuant to subsection 4(d)(i)(E) of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote Article IV of the Major Investors holding greater Restated Certificate or (viii) Common Stock issued to persons or entities pursuant to commercial debt facilities, provided such issuances are for other than fifty percent (50%) of the Registrable Securities then held by all Major Investorsprimarily equity financing purposes. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliatesan affiliated venture capital fund.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) the Company’s sale of its Common Stock or other securities pursuant to Registration Statement under the Act, at an offering price of at least $3.33 per share (appropriately adjusted for any stock split, dividend, combination or the like after the Recapitalization) and resulting in proceeds to the Company of at least $30,000,000 in the aggregate (other than a Qualified Public Offering registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option, stock purchase or similar plan or a SEC Rule 145 transaction) or (ii) a Liquidation Event, as that term is defined in the Restated Certificate.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (NephroGenex, Inc.), Investors’ Rights Agreement (Care Capital III LLC)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.7, the Company hereby grants to each Major Investor a right of first offer with respect to future issuance or sales by the Company of its Shares (as hereinafter defineddefined below). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it under this Agreement among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exercisable or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, or any unit of debt phantom stock or equity securities) stock appreciation rights (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by certified mail (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares. If the consideration to be paid by others for the Shares is not cash, the fair market value of the consideration shall be determined in good faith by the Company's Board of Directors and a reasonably detailed explanation of such determination of fair market value shall be included in the Notice. All Major Investors electing to participate in the offering of such Shares shall pay the cash equivalent thereof as so determined.
(b) By written notification received by the Company within twenty (20) 20 calendar days after the giving of the Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or including all shares of Common Stock issuable upon conversion of the Preferred Stock then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities) (the “Pro Rata Portion”). The Company shall promptly, in writing, inform each Major Investor that elects to purchase which purchases all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewiselikewise (the “Non-Fully Exercising Investor”). During the ten (10) ten-day period commencing after such information is given, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that Investors which is equal to the proportion that the number of shares of Common Stock held issued and held, including all shares of Common Stock issuable upon conversion of Preferred Stock then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, including all shares of Common Stock issuable upon conversion of the Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereofSection 2.7(b), the Company may, during the ninety (90) day period for 90 business days following the expiration of the period provided in subsection 2.4(b) hereofSection 2.7(b), offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than thosethan, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.7 shall not be applicable to (i) the issuance or sale of (i) (A) up to 7,242,242 shares of Common Stock (as adjusted for any stock dividends, combinations and splits with respect to such shares of Common Stock) issued pursuant to the exercise of the stock options granted pursuant to the Company’s 2002 Equity Incentive Plan (as amended, the “Option Plan”) and outstanding on the date hereof, (B) up to 3,770,584 shares of Common Stock (as adjusted for any stock dividends, combinations and splits with respect to such shares of Common Stock) issued as restricted stock awards, or issuable upon exercise of stock options thereforissued or granted after the date hereof pursuant to the Option Plan or (C) shares of Common Stock issued as restricted stock awards, or issuable upon exercise of stock options issued or granted after the date hereof pursuant to the Option Plan to the extent that any stock options or restricted stock awards previously granted pursuant to clause (A) or clause (B) of this Section 2.7(d)(i) are canceled or expire unexercised or are repurchased upon termination of service to the Company, in each such case, issued to employees, directorsofficers, directors or consultants and other service providers for the primary purpose of soliciting or retaining their employment or services pursuant to plans or agreements approved by for the benefit of the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance Shares issued upon or after consummation of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock Stock, registered under the ActAct pursuant to a registration statement on Form S-1, in connection with which all shares of Preferred Stock convert into Common Stock, (iii) the issuance of securities Shares issued pursuant to the conversion or exercise of convertible or exercisable securities warrants outstanding as of the date hereof, (iv) the issuance of securities Shares issued as acquisition consideration in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, if such issuance or sale is approved by the Company’s Board of Directors, (v) Shares in an amount covering up to 500,000 shares of Common Stock (as adjusted for stock splits, dividends, recapitalizations and the like with respect to such shares), issued pursuant to any leasing arrangement or debt financing from a bank or similar financial institution, or pursuant to any research and development or other strategic partnership, licensing or collaborative arrangements and other similar transactions, if such issuance or sale is approved by the Company’s Board of Directors including the affirmative vote or written consent of at least one of the Series F Directors (which approval shall include as defined in the vote of a Preferred DirectorRestated Certificate), (vvi) the issuance and sale of Series 7 Preferred Stock Shares issued pursuant to the Series 7 Purchase Agreement, (vivii) Shares issued upon the exercise of warrants issued pursuant to the Purchase Agreement, (viii) Shares issued upon conversion of the Preferred Stock or (ix) Shares issued in connection with any stock split or other stock dividend by the Company.
(e) Any and all rights arising under this Section 2.7 with respect to the issuance or sale of stockany Shares may be waived, warrants either prospectively or other securities or rights to persons or entities with which the Company has business relationshipsretrospectively, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of (i) the Major Investors holding greater than fifty percent (50%) that hold a majority of the Registrable Securities then shares of Common Stock issued or issuable upon conversion of the shares of Series E Stock held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offeringvoting as a separate class, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) the Series F Requisite Investors, voting as a separate class, and any such offering of Shares is otherwise being offered only waiver shall be effective as to accredited investors.
(e) The all Major Investors with such rights provided in under this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates2.7.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investor Rights Agreement (Chimerix Inc), Investor Rights Agreement (Chimerix Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)) issued and held, or issuable upon conversion of the Preferred Stock then held, by all the Major Investors. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock issued and held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)) who wish to purchase some of the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fideQualified Public Offering (as such term is defined in the Company’s Amended and Restated Certificate of Incorporation, firmly underwritten public offering of shares of Common Stock registered under the Actas amended form time to time), (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, otherwise approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director)Directors, (v) the issuance and sale of Series 7 F Preferred Stock pursuant to the Series 7 Purchase F Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-other than equity financing purposes (which approval shall include and are approved by the affirmative vote Company’s Board of a Preferred Director), Directors; or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote that, with unanimous approval of the Major Investors holding greater than fifty percent (50%) Company’s Board of Directors, are not offered to any existing shareholder of the Registrable Securities then held by all Major InvestorsCompany. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliatesan affiliate or affiliated venture capital fund.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) the Company’s sale of its Common Stock or other securities pursuant to Registration Statement under the Act (other than a Qualified Public Offering registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option, stock purchase or similar plan or a SEC Rule 145 transaction) or (ii) a Liquidation Event, as that term is defined in the Company’s Amended and Restated Certificate of Incorporation (as amended from time to time).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Marketo, Inc.), Investors’ Rights Agreement (Marketo, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.1, the Company hereby grants to each Investor, who holds at least 100,000 shares of Preferred Stock and/or shares of Common Stock issued upon the conversion thereof (as adjusted for any stock splits, consolidations and the like) (a "Major Investor Investor"), a right of first offer with respect to future sales by the Company of its Shares Securities (as hereinafter defined). Each time the Company proposes to offer subsequent to the offering under the Series C Preferred Agreement any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock ("Securities"), the Company shall first make an offering of such Securities to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice pursuant to Section 5.5 below ("Notice") to each Major Investor stating (i) its bona fide intention to offer such Securities, (ii) the number of such Securities to be offered, (iii) the price, if any, for which it proposes to offer such Securities, and (iv) the terms of such offer.
(b) Within 15 calendar days after receipt of the Notice, each Major Investor may elect to purchase or obtain, at the price and on the terms specified in the Notice, up to an amount of such Securities equal to that portion of such Securities which equals the proportion that the number of shares of Common Stock held by such Major Investor (or issuable to such Major Investor upon conversion of the shares of Preferred held by such Major Investor) bears to the sum of the number of shares of Common Stock then outstanding plus the number of shares of Common Stock issuable upon conversion of all Preferred Stock of the Company then outstanding. For purposes of this Section 2.43.1, the term “"Major Investor” " includes any general partners and or affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that Securities which the Major Investors are entitled to obtain purchase pursuant to subsection 2.4(b) this Section 3.1 are not elected to be obtained as provided in subsection 2.4(bSection 3.1(b) hereof, the Company may, during the ninety (90) 90 day period following the expiration of the period provided in subsection 2.4(bSection 3.1(b) hereof, offer the remaining such unsubscribed portion of such Shares Securities to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than thosethan, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares Securities within such period, or if such agreement is not consummated within sixty (60) 90 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewithrevived.
(d) The right of first offer in this Section 2.4 3.1 shall not be applicable to (i) to the issuance or sale of shares of Common Stock capital stock (or options therefor) to employees, directorsofficers, directors or consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements such other amount as shall have been approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorDirectors, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) to the issuance or sale of the Company's securities pursuant to leasing entities or financial institutions in connection with commercial leasing or borrowing transactions, (iii) to or after consummation of a bona fideQualifying Public Offering, firmly underwritten public offering (iv) to any issuances of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities Preferred Stock in connection with a bona fide business acquisition of any stock split, stock dividend or recapitalization by the Company, whether (v) to securities offered in connection with the acquisition of another corporation by the Company by merger, consolidation, sale purchase of assets, sale all or exchange substantially all of stock the assets or otherwise, shares of such corporation as shall have been approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase AgreementDirectors, (vi) to the issuance or sale of stock, warrants the Company's securities to strategic partners in connection with licensing or other securities or rights to persons or entities with which partnering transactions that have been approved by the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote Board of a Preferred Director)Directors, or (vii) to the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right any shares of first offer in this Section 2.4 by the written consent or affirmative vote Series C Preferred authorized as of the Major Investors holding greater than fifty percent (50%) date of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsAgreement.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Healthetech Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.43.4, the term “Major Investor” includes any general partners and affiliates Affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The At the expiration of such twenty (20) calendar day period, the Company shall promptly, in writing, inform promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully-Fully Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given such information is givennotice, each Fully-Fully Exercising Major Investor may 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 Shares for which Major Investors were entitled to subscribe, subscribe but which that were not subscribed for by the Major Investors, that Investors which is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly) Common Stock, including options and warrants (“Derivative Securities”) then held, by such Fully-Fully Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully-Fully Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)who wish to purchase such unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(bSection 3.4(b) of this Agreement are not elected to be obtained as provided in subsection 2.4(bSection 3.4(b) hereofof this Agreement, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(bSection 3.4(b) hereofof this Agreement, offer the remaining unsubscribed portion of such Shares to any person Person or persons Persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 3.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options thereforany equity securities described in Article IV, Section 4(d)(ii)(A)-(H) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorRestated Certificate, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 D Preferred Stock pursuant to the Series 7 Purchase D Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 3.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 3.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund or other investment fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 3.4 shall terminate and be of no further force or effect upon the consummation of (i) an Initial Offering or Direct Listing (excluding the filing of a Qualified Public Offering registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option, stock purchase or similar plan or a SEC Rule 145 transaction) or (ii) a Liquidation Event, as that term is defined in the Restated Certificate.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Zymergen Inc.), Investors’ Rights Agreement (Zymergen Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.5, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.43.5, the term “Major Investor” includes any general partners and affiliates Affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) (such amount, a “Pro Rata Share”). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following At the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty twenty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”20); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (RAPT Therapeutics, Inc.), Investors’ Rights Agreement (RAPT Therapeutics, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its New Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” Investor includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions affiliates as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“New Shares”), the Company shall first make an offering of such New Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such New Shares, (ii) the number of such New Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such New Shares.
(b) By written notification received by the Company Company, within twenty fifteen (2015) calendar days after receipt of the giving of Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such New Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities of the Company then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion of all outstanding convertible securities and the exercise of all convertible and exercisable securities then outstandingany outstanding options or warrants). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares New Shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that all or a portion of the New Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major InvestorsInvestors (such shares, the “Remaining Shares”), provided that to the extent the aggregate number of shares the Fully-Exercising Investors desire to purchase exceeds the number of Remaining Shares, then each Fully-Exercising Investor shall only be entitled to purchase that portion of the Remaining Shares that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full issued and held, or issuable upon conversion and exercise of all convertible and or exercisable securities of the Company then outstanding) held, by such Fully-Exercising Investor bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of and exercise of all convertible or exercisable securities of the Company then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)who wish to purchase the Remaining Shares.
(c) If all New Shares that Major Investors are entitled to obtain pursuant to subsection Section 2.4(b) are not elected to be obtained as provided in subsection Section 2.4(b) hereof, the Company may, during the ninety forty-five (9045) day period following the expiration of the period provided in subsection Section 2.4(b) hereof, offer the remaining unsubscribed portion of such New Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree (individually or in the aggregate) than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the New Shares within such period, or if such agreement is not consummated within sixty (60) 45 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The For purposes of this Section 2.4, “New Shares” shall not include, and therefore the right of first offer in this Section 2.4 shall not be applicable to (i) the issuance of, any securities that are specifically excluded from the definition of “Additional Shares of Common Stock” in the Restated Certificate, including, without limitation, shares of Series H Preferred Stock issued or sale of issuable under the Series H Agreement at the First Closing or any Subsequent Closing and shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose issuable upon conversion of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board any shares of Directors (which approval shall include the affirmative vote of the Series 4 DirectorA Preferred Stock, Series 5 DirectorB Preferred Stock, Series 6 Director C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock, Series G Preferred Stock, Series G-l Preferred Stock or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “H Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsStock.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Control4 Corp), Investors’ Rights Agreement (Control4 Corp)
Right of First Offer. Subject to the terms and conditions specified in this Section paragraph 2.4, the Company hereby grants to each Major Investor a right of first offer to purchase its Pro Rata Share (as hereinafter defined) (in whole or in part) with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Each Investor shall be entitled to assign or apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates (including in the case of a venture capital fund other venture capital funds affiliated with such fund) in such proportions as it deems appropriate. For purposes of this Section 2.4, a Investor's "Pro Rata Share" of Shares shall mean that number of Shares that equals the proportion that (x) the number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, by such Investor bears to (y) the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities). Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by confirmed facsimile transmission, certified mail or a nationally recognized overnight courier service (“"Notice”") to each of the Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms a summary of the terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty ten (2010) calendar days after receipt of the giving of Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion its Pro Rata Share of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)Shares.
(c) If all Shares that Major the Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety sixty (90) day 60)-day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty thirty (6030) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of to shares of Common Stock (issuable or options therefor) issued to employees, directorsconsultants, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote directors of the Series 4 Director, Series 5 Director, Series 6 Director Company directly or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fidestock option plan, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion stock incentive or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of restricted stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.plan
Appears in 2 contracts
Sources: Investors' Rights Agreement (Webridge Inc), Investors' Rights Agreement (Webridge Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.5, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined)Shares. For purposes of this Section 2.43.5, the term “Major Investor” includes any general partners and affiliates Affiliates (other than an Affiliate that is a Competitor or an Affiliate that is a Disallowed SPV Entity) of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates (other than an Affiliate that is a Competitor or an Affiliate that is a Disallowed SPV Entity) in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of such shares or securities issued in connection with debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.7 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The At the expiration of such twenty (20) calendar day period, the Company shall promptly, in writing, inform notify each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) calendar day period commencing after the Company has given such information is givennotice to the Fully-Exercising Major Investors, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held by all Fully-Exercising Major Investors of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(bSection 3.5(b) of this Agreement are not elected to be obtained as provided in subsection 2.4(bSection 3.5(b) hereofof this Agreement, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(bSection 3.5(b) hereofof this Agreement, offer the remaining unsubscribed portion of such Shares to any person Person or persons Persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 3.5 shall not be applicable to (i) the issuance or sale of shares of Common Stock any equity securities described in Article IV, Section 4(d)(ii)(A) through (or options thereforI) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorRestated Certificate, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 H Preferred Stock pursuant to the Series 7 Purchase H Agreement, or (viiii) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance and sale of securities to non-Affiliates that are specifically deemed not offered to be subject to the right of first offer in this Section 2.4 by the written consent any existing stockholder (or affirmative vote of the Major Investors holding greater than fifty percent (50%any Affiliate thereof) of the Registrable Securities then held Company, if such issuance and sale has been unanimously approved by all Major Investorsthe Board as being exempt from this Section 3.5. In addition to the foregoing, the right of first offer in this Section 2.4 3.5 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (iA) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (iiB) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 3.5 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its AffiliatesAffiliates (other than an Affiliate that is a Competitor or an Affiliate that is a Disallowed SPV Entity). For the avoidance of doubt SoftBank Vision Fund (AIV M2) L.P. (“SBVF”), Coatue US 11 LLC (“Coatue”), DST Global VI, L.P. (“DST”), Doorstep DF Holdings, LP (“Dragoneer”), Darsana Master Fund LP (“Darsana”) and Temasek and each of their Affiliates (other than an Affiliate that is a Competitor or an Affiliate that is a Disallowed SPV Entity) shall be deemed to be a venture capital fund.
(f) The covenants set forth in this Section 2.4 3.5 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public the Initial Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (DoorDash Inc), Investors’ Rights Agreement (DoorDash Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates Affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock that are Registrable Securities then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding and held by such Major Investor) bears to the Prior Equity Financing Fully Diluted Shares. For purposes of this paragraph, the “Prior Equity Financing Fully Diluted Shares” shall mean the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities outstanding) immediately following the closing of the most recent equity financing that occurred prior to the proposed sale of the Shares for which this right is then outstanding)being triggered. The At the expiration of such twenty (20) calendar day period, the Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities then held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstandingoutstanding and held by such Fully-Exercising Investor) bears to the total number of shares of Common Stock that are Registrable Securities held by all the Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingoutstanding and held by the Fully-Exercising Investors).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Chime Financial, Inc.), Investors’ Rights Agreement (Chime Financial, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.2, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.2, the term “Major Investor” Investor includes any general partners partners, managing members and affiliates of a Major Investor, including Affiliated Funds. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(ai) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(bii) By written notification received by the Company within twenty (20) calendar Within 30 days after delivery of the giving of RFO Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all outstanding convertible or exercisable securities, rights, options and exercisable securities then outstandingwarrants). Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) -day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full issued and held, or issuable upon conversion and exercise of all convertible and or exercisable securities then outstanding) held, by such Fully-Exercising Investor bears to the total number of shares of Common Stock held by all Fully-Exercising Major Investors then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstandingoutstanding shares of Preferred Stock).
(ciii) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of after the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(div) The right of first offer in this Section 2.4 2.3 shall not be applicable to (i) the issuance of securities in connection with stock dividends, stock splits or similar transactions; (ii) the issuance or sale of shares of Common Stock (or options therefor) to employees, directorsofficers, consultants and or directors of the Company, or other service providers persons performing services for the primary purpose of soliciting Company, directly or retaining their services pursuant to plans a stock option plan or agreements restricted stock plan approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofof this Agreement, including without limitation, warrants, notes or options, or issued pursuant to the Purchase Agreement; (iv) the issuance or sale of the Series B Preferred Stock and warrants pursuant to the Purchase Agreement; or (v) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board (1) acquisition of Directors (which approval shall include the vote of a Preferred Director)intellectual property, (v2) the issuance entering into a strategic partnership transaction primarily for a purpose other than raising capital, (3) acquisition of real property or personal property leases, (4) acquisition of marketing rights, or (5) equipment financing or other debt financings, and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance securities of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances which are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to otherwise excluded from the right of first offer in this Section 2.4 by the written consent or affirmative vote or consent of the Major Investors holding greater than fifty percent (50%) holders of at least a majority of the Registrable Securities shares of Preferred Stock of the Company then held by all Major Investorsoutstanding, voting together as a single class on an as-converted basis. In addition to the foregoing, the right of first offer in this Section 2.4 2.3 shall not be applicable with respect to any Investor in and any subsequent offering of Shares securities issuance, if (i) at the time of such offeringsubsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Securities Act, and (ii) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(ev) The rights provided for in this Section 2.4 may not be assigned or transferred by any Major Investor; provided2.3 shall, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) with respect to each Major Investor who is a Qualified Public Offering or Common Holder, terminate upon such Common Holder’s failure to become a Fully Exercising Investor after the delivery by the Company of a RFO Notice, and (ii) with respect to each Major Investor who is a Liquidation EventPreferred Holder, terminate upon such Preferred Holder’s failure to purchase at least fifty percent (50%) of such Preferred Holder’s pro rata share of the Shares subject to the RFO Notice.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (DermTech International), Investors’ Rights Agreement (DermTech International)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.1 and only after giving effect to Section 3.2 below, the Company hereby grants to each holder of at least five percent (5%) of the shares of Preferred Stock (measured on an as-converted basis, and including any Preferred Stock issued or issuable pursuant to the Share Exchange Agreement) (a “Major Investor Investor”) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For Any Preferred Stock issued or issuable pursuant to the Share Exchange Agreement shall be deemed outstanding and held by the Major Investor for all purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major InvestorAgreement. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time Except as otherwise set forth herein, if subsequent to the date of this Agreement, the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.4 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and offered, (iii) the price and terms upon which it proposes to offer such SharesShares and (iv) the names of the prospective purchasers.
(b) By written notification received by the Company within twenty (20) calendar days after receipt of the giving of Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the ratio that (i) the number of shares of Common Stock held or deemed held by such Major Investor (measured on an as-converted basis, and including (x) all shares of Common Stock issuable upon the exercise of any outstanding warrants or options and (y) all shares of Common Stock issuable upon the conversion of any Preferred Stock issued or issuable pursuant to the Share Exchange Agreement) bears to (ii) the total number of shares of the Common Stock then outstanding (measured on an as-converted basis, and including (x) all shares of Common Stock issuable upon the exercise of any outstanding warrants or options and (y) all shares of Common Stock issuable upon the conversion of any Preferred Stock issued or issuable pursuant to the Share Exchange Agreement) (a “Pro-Rata Share”). For purposes of this Section 3, the number of shares of Common Stock held by BioDiscovery 4 FPCI (“BioDiscovery 4”) and Coöperatieve Gilde Healthcare IV U.A. (“Gilde”) and the aggregate number of shares of Common Stock held by all Investors shall include the securities issuable to BioDiscovery 4 and Gilde and to any other Investor pursuant to the Share Exchange Agreement.
(c) To the extent any Major Investor fails to fully exercise its rights pursuant to Section 3.1(b) as to its full Pro-Rata Share of the Shares (the “Unexercised Shares”) offered within said twenty (20) day period, the Company shall give each Major Investor who has elected to exercise its rights pursuant to Section 3.1(b) notice that such Major Investor may elect to purchase all or any portion of the Unexercised Shares upon similar terms as previously offered (the “Oversubscription Right”). Each such Major Investor shall have twenty (20) days after the date of receipt of notice pursuant to this Section 3.1(c) to agree to purchase all or any portion of the Unexercised Shares by giving written notice to the Company and stating therein the quantity of Unexercised Shares to be purchased; provided, that if the Major Investors in the aggregate elect to purchase more shares than are available as Unexercised Shares, such securities shall be allocated to such Major Investors on a pro rata basis which equals the proportion that the number of shares of the Common Stock held or deemed held by such Major Investor (measured on an as converted basis, and (x) including all shares of Common Stock issuable upon the exercise of any outstanding warrants or options and (y) all shares of Common Stock issuable upon the conversion of any Preferred Stock issued and held, or issuable upon conversion of Preferred Stock then held, by such Investor pursuant to the Share Exchange Agreement) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion measured on an as-converted basis, and exercise of including (x) all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and issuable upon the exercise of any outstanding warrants or options and (y) all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock issuable upon the conversion of any Preferred Stock issued or issuable pursuant to the Share Exchange Agreement) and then held or deemed held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)that elected to purchase Shares in the Oversubscription Right.
(cd) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(bSections 3.1(b) and (c) are not elected to be obtained as provided in subsection 2.4(bSections 3.1(b) and (c) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(bSection 3.1(c) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(de) The right of first offer in this Section 2.4 3.1 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) reserved for issuances to employees, directors, officers, employees and consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to stock option plans or and agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred DirectorsEmployee Pool”); , (ii) the issuance of securities pursuant to in connection with the acquisition of a bona fidebusiness entity or business segment of any such entity by the Company by merger, firmly underwritten public offering of shares of Common Stock registered under purchase, consolidation or other similar business combination, as approved by the ActBoard, (iii) the issuance of securities pursuant to in connection with equipment leases, real property leases, bank financings, strategic alliances or similar transactions as approved by the conversion or exercise of convertible or exercisable securities outstanding Board, provided that such transactions do not have equity financing as of the date hereofa substantial component, (iv) the issuance of securities in connection with a bona fide business acquisition of Series C Preferred pursuant to the Series C Purchase Agreement or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director)Share Exchange Agreement, (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreementsecurities in a registered public offering or IPO, (vi) the issuance of stocksecurities pursuant to currently outstanding options, warrants warrants, notes, convertible securities or other securities or rights to persons or entities with which acquire securities of the Company has business relationshipsCompany, provided such issuances are primarily for non-equity financing purposes (which approval shall include including the affirmative vote issuance of a shares of Common Stock upon the conversion of any of the Preferred Director)Stock of the Company, or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent stock splits, stock dividends or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investorslike transactions. In addition to the foregoing, the right of first offer in this Section 2.4 3.1 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares if (i) at the time offer and sale to such Major Investor would cause the Company to be in violation of applicable federal or state securities laws by virtue of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned offer or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliatessale.
(f) The rights under this Section 3.1 may be transferred by a Major Investor to the same parties, subject to the same restrictions as any transfer of registration rights pursuant to Section 2.8.
(g) The covenants set forth in this Section 2.4 3.1 shall terminate and be of no further force or effect upon the consummation of (i) the closing of a Qualified Public Offering Offering, or (ii) a Liquidation Event(as defined in the Company’s Fourth Amended and Restated Certificate of Incorporation (as amended, the “Restated Certificate”)), whichever event shall first occur.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Axonics Modulation Technologies, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates Affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares (the “Pro Rata Share”) that equals the proportion that the number of shares of all Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion, exchange and exercise of all Company securities held by such Major Investor that are convertible, exchangeable or exercisable into shares of Common Stock) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion conversion, exchange and exercise of all convertible and exercisable Company securities then outstandingoutstanding that are convertible, exchangeable or exercisable into shares of Common Stock). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock issued and held by such Fully-Exercising Major Investor (assuming full conversion conversion, exchange and exercise of all convertible and Company securities held by such Fully-Exercising Investor that are convertible, exchangeable or exercisable securities then outstandinginto shares of Common Stock) bears to the total number of shares of Common Stock issued and held by all Fully-Exercising Major Investors who wish to purchase some of the unsubscribed shares (assuming full conversion conversion, exchange and exercise of all convertible and Company securities held by all such Fully-Exercising Investors that are convertible, exchangeable or exercisable securities then outstandinginto shares of Common Stock).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale issuances of shares of Common Carve Out Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and the Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); Certificate) or (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 F Preferred Stock pursuant to the Series 7 Purchase F Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its AffiliatesAffiliates that are not SPV Entities.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Amplitude, Inc.), Investors’ Rights Agreement (Amplitude, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.3, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b2.3(b) are not elected to be obtained as provided in subsection 2.4(b2.3(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, resulting in proceeds to the Company of at least $20,000,000 in the aggregate, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 A Preferred Stock pursuant to the Series 7 Purchase Agreement, A Agreement or (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-other than equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote that, with unanimous approval of the Major Investors holding greater than fifty percent (50%) Company’s Board of Directors, are not offered to any existing stockholder of the Registrable Securities then held by all Major InvestorsCompany. In addition to the foregoing, the right of first offer in this Section 2.4 2.3 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 2.3 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliatesan affiliated venture capital fund.
(f) The covenants set forth in this Section 2.4 2.3 shall terminate and be of no further force or effect upon the consummation of (i) the Company’s sale of its Common Stock or other securities pursuant to Registration Statement under the Act resulting in proceeds to the Company of at least $20,000,000 in the aggregate (other than a Qualified Public Offering registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option, stock purchase or similar plan or a SEC Rule 145 transaction) or (ii) a Liquidation Event., as that term is defined in the Company’s Amended and Restated Certificate of Incorporation (as amended from time to time)
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Iradimed Corp), Investors’ Rights Agreement (Iradimed Corp)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners partners, limited partners, members, direct or indirect subsidiaries of such person that are at least 50% controlled by such person and affiliates of a Major an Investor, and/or any venture capital fund (or other investment fund) now or hereafter existing that is controlled by one or more general partners or managing members of, or is under common investment management with, such Investor. A Major An Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners partners, Affiliates and Affiliates other aforementioned persons in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, of its capital stock (including, without limitation, any unit of such shares or securities issued in connection with debt or equity securities) securities (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty thirty (2030) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares Registrable Securities issued and held, or issuable upon conversion of Common the Preferred Stock held then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety sixty (9060) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty thirty (6030) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to to
(i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorDirectors, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, otherwise approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director)Directors, (v) the issuance of that certain Warrant to Purchase Shares of Common Stock issued to Yahoo! as of June 9, 2014 and sale the issuance of Series 7 Preferred shares of Common Stock pursuant to the Series 7 Purchase Agreementupon exercise thereof, (vi) the issuance of stock, warrants the shares of Series A Preferred Stock issuable upon exercise of the Warrant (or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred DirectorCommon Stock issuable upon conversion thereof), or (vii) the issuance of securities pursuant to any equipment leasing arrangement or debt financing arrangement, which arrangement is approved by the Board of Directors, and is primarily for non-Affiliates equity financing purposes, (viii) issuance of securities pursuant to the Allocation Agreement dated as of March 24, 2014 by and between the Company and Passport Capital, LLC (“Passport”) (the “IPO Allocation Agreement”), or (ix) the issuance of securities that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) at least a majority of the Registrable Securities then Common Stock issuable or issued upon conversion of Preferred Stock held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major an Investor that is a venture capital fund (or other investment fund), corporation, limited liability company, limited partnership or other entity may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering Offering, as that term is defined in the Restated Certificate or (ii) a Liquidation Event, as that term is defined in the Restated Certificate, other than a Liquidation Event where the consideration is stock that is not tradable on a national securities exchange.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Hortonworks, Inc.), Investors’ Rights Agreement (Hortonworks, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor Investor, a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term a Major Investor shall mean any Major Investor or transferee thereof that is also a Major Investor immediately following such transfer. For purposes of this Section 2.4, “Major Investor” includes any general partners partners, members and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners partners, members and Affiliates affiliates in such proportions proportions, as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:.
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty ten (2010) calendar days after receipt of the giving of Notice, each the Major Investor Investors may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major InvestorHolder”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor Holder may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion of the Preferred Stock then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) Holder bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of the Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise Holders who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty ninety (6090) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance of shares of Series D Preferred Stock pursuant to the Series D Agreement, (ii) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, directors and consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”)services; (iiiii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock Stock, registered under the Act, (iiiiv) the issuance of securities as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (v) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (ivvi) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors otherwise or (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vivii) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, relationships provided such issuances are for other than primarily for non-equity financing purposes and provided that any such issuance is approved by the Company’s Board of Directors, including at least one of the VC Preferred Directors (as defined below).
(e) Major Investors may assign all or any part of their rights under this Section 2.4 to persons or entities approved by the Board.
(i) Each Industry Investor hereby agrees that unless specifically invited in writing by the Company to do so, none of the Industry Investors or any of their Affiliates will, or will cause or knowingly permit any of its or their directors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives to, in any manner, directly or indirectly: (A) effect or seek, initiate, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or encourage any other person to effect or seek, initiate, offer or propose (whether publicly or otherwise) to effect or cause or participate in: (1) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company; (2) any tender or exchange offer, merger, consolidation or other business combination involving the Company; (3) any recapitalization, restructuring, liquidation, dissolution, sale of assets or other extraordinary transaction with respect to the Company; or (4) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the United States Securities and Exchange Commission) or consents to vote any voting securities of the Company; (B) form, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to any securities of the Company; (C) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company; (D) take any action which approval shall include might reasonably force the affirmative vote Company to make a public announcement regarding any of a Preferred Directorthe types of matters set forth in (A) above; or (E) enter into any agreements, discussions or arrangements with any third party with respect to any of the foregoing. Each Industry Investor also agrees not to request that the Company (or its directors, officers, employees or agents), directly or indirectly, amend or waive any provision of this subsection 2.4(f) (viiincluding without limitation this sentence) or the issuance proviso in the last clause of Section 2.12. SKB represents and warrants that, except for shares of Series C Preferred Stock of the Company purchased by SKB pursuant to that certain Series C Preferred Stock Purchase Agreement dated June 15, 2005 by and among the Company and certain stockholders of the Company, neither SKB nor any of its Affiliates owns, of record or beneficially, any voting securities to non-Affiliates that are specifically deemed not to be subject of the Company, or any securities convertible into or exercisable for any such voting securities. BI represents and warrants that, except for shares of Series D Preferred Stock of the Company purchased by BI pursuant to the right Series D Agreement, neither BI nor any of its Affiliates owns, of record or beneficially, any voting securities of the Company, or any securities convertible into or exercisable for any such voting securities.
(ii) Nothing in this subsection 2.4(f) shall prohibit (A) an Industry Investor or its Affiliates from purchasing additional equity securities of the Company if after such purchase such Industry Investor and its Affiliates would own no greater percent of the total voting power of all voting securities of the Company then outstanding than such Industry Investor and its Affiliates own on the date hereof; (B) an Industry Investor or its Affiliates from acquiring securities of the Company issued in connection with stock splits or recapitalizations or on exercise of pre-emptive rights or rights of first offer afforded to Company stockholders generally or under this Agreement or the Amended and Restated Certificate of Incorporation of the Company; (C) an Industry Investor or its Affiliates or any of its or their respective directors, officers and employees from purchasing securities of the Company pursuant to (I) a pension plan established for the benefit of such employees, (II) any employee benefit plan of such Industry Investor or its Affiliates, (ill) any stock portfolios not controlled by such Industry Investor or any of its Affiliates that invest in this Section 2.4 the Company among other companies; (D) personal investment by any director or officer of such Industry Investor or its Affiliates in securities of the Company unless such director or officer is with such Industry Investor or its Affiliates part of a “group” (as defined under the Securities Exchange Act of 1934, as amended) for purposes of subsection 2.4(f)(i); (E) an Industry Investor or its Affiliates from acquiring securities of another company that beneficially owns any securities of the Company; provided, however, that the fair market value of the securities of the Company (as determined in good faith by the written consent or affirmative vote Board of Directors of the Major Investors holding greater Company within five (5) business days prior to the closing of any such acquisition) beneficially owned by such company and its Affiliates shall not exceed, in the aggregate, five percent (5%) of the combined fair market value of the assets of such company and Affiliates set forth on the financial statements thereof; (F) an Industry Investor or its Affiliates from acquiring equity securities of the Company without any limitation following initiation by a third party of an unsolicited offer to purchase twenty percent (20%) or more of any class or series of the Company’s publicly traded voting securities (a “Hostile Tender Offer”); provided that the exception provided by this subsection 2.4(f)(ii)(F) shall be limited to the classes or series of the Company’s securities that are the subject of the Hostile Tender Offer or (G) an Industry Investor or its Affiliates from tendering or selling any securities of the Company, or voting any securities of the Company, in its sole discretion, in connection with any tender or exchange offer, merger, consolidation or other business combination, or solicitation of proxies, following initiation by a third party of any such action without involvement by the Industry Investor which would violate the provisions of subsection 2.4(f)(i).
(iii) For purposes of this subsection 2.4(f), “Affiliate” shall mean any natural person or corporation, general partnership, limited partnership, limited liability company, joint venture, proprietorship or other entity that directly or indirectly, controls, is controlled by or is under common control with an Industry Investor. For purposes of the foregoing sentence, the term “control” means having decision making authority as to such natural person or entity, through ownership of equity, membership interests or contract. Such control will be presumed to exist where any such natural person or entity owns more than fifty percent (50%) of the Registrable Securities then held voting power (or such lesser percentage which is the maximum allowed to be owned by all Major Investors. In addition to the foregoing, the right of first offer a foreign corporation in this Section 2.4 shall not be applicable a particular jurisdiction) with respect to any Investor in any subsequent offering determination of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) composition of the Act and (ii) such offering board of Shares is otherwise being offered only directors or other body entitled to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investordirect the affairs of affiliated entity; provided, however, that a Major Investor that is a venture capital fund may assign the absence of any or transfer such rights to its Affiliatesall of the aforementioned circumstances shall not necessarily be deemed an absence of control.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Vitae Pharmaceuticals, Inc), Investors’ Rights Agreement (Vitae Pharmaceuticals, Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.43.3, a Major Investor shall be deemed to hold the term “Major Investor” includes securities of the Company held by any of its general partners partners, managing members and affiliates affiliates, including Affiliated Funds that do not otherwise hold a sufficient number of the Company’s shares to qualify as a Major Investor. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. Each Except as provided in Section 3.3(d), each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 30 calendar days after delivery of the giving of RFO Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor bears to the total number of shares of Preferred Stock then held by all Major Investors, in each case with each share of Preferred Stock considered on an as-if converted to Common Stock basis. Such purchase shall be completed at the same closing as that of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)any third party purchasers or at an additional closing thereunder. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Fully Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) 10 day period commencing after receipt of such information is giveninformation, each Fully-Fully Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Preferred Stock held by such Fully-Fully Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Preferred Stock considered on an as-if converted to Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)basis.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45 day period following the expiration of the period provided in subsection 2.4(b3.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 3.3 shall not be applicable to (i) the issuance of Shares pursuant to stock dividends, stock splits or similar transactions; (ii) the issuance or sale of shares of Common Stock Shares (or options therefor) to employees, directorsofficers, directors and consultants and other service providers for of the primary purpose of soliciting Company, directly or retaining their services pursuant to a stock option plan, restricted stock purchase plans or agreements other stock plan approved by the Company’s Board of Directors (which approval shall include the affirmative vote including 60% of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined directors designated by the holders of Preferred Stock then in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”office); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance or sale of securities pursuant Shares to financial institutions or lessors in connection with commercial credit arrangements, equipment financings, commercial property lease transactions or similar transactions, the terms of which are approved by the Board of Directors (including 60% of the directors designated by the holders of Preferred Stock then in office); (iv) the issuance or sale of Common Stock or Preferred Stock issuable upon the conversion or exercise of convertible or exercisable securities securities, including without limitation, warrants, notes or options outstanding as of the date hereof, (iv) the issuance of securities this Agreement or issued in connection compliance with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Directorthis Section 3.1(d), ; (v) the issuance and or sale of Shares in connection with bona fide acquisitions, mergers, joint ventures, strategic partnerships or similar transactions, the terms of which are approved by the Board of Directors (including at least 60% of the directors designated by the holders of Preferred Stock then in office); (vi) the issuance or sale of the Series 7 E Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights as such may be amended from time to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or time; (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right Common Stock or Preferred Stock upon conversion of first offer the Preferred Stock; (viii) the issuance or sale of Common Stock in this Section 2.4 by a Qualified IPO; (ix) the written consent issuance or sale of Shares with the affirmative vote of the Major Investors holding greater than fifty percent (50%) at least 65% of the Registrable Securities then outstanding shares of the Preferred Stock (voting together as a single class with each holder of Preferred Stock entitled to one vote per share of Preferred Stock then held by all Major Investorssuch holder); or (x) the issuance of any Shares that are not offered to existing stockholders pursuant to the approval of the Board of Directors (including at least 60% of the directors designated by the holders of Preferred Stock then in office(xi) the issuance of warrants to purchase Preferred Stock to Oxford Finance LLC, a Delaware limited liability company (“Oxford”) and Silicon Valley Bank, a California corporation (“SVB”) pursuant to the Loan and Security Agreement dated on or about March 26, 2012 (the “Loan Agreement”); and (xiii) the issuance of Shares to SVB or Oxford or their permitted assigns in compliance with the letter agreements entered into in connection with the Loan Agreement that grants each Lender certain rights to participate future equity financings of the Company (the “Equity Participation Side Letters”). ). In addition to the foregoing, the right of first offer in this Section 2.4 3.3 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares securities issuance, if (i) at the time of such offeringsubsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Securities Act, and (ii) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided in of first refusal of each Major Investor under this Section 2.4 3.3 may not be assigned or transferred by to the same parties, subject to the same restrictions, as any Major Investor; transfer of registration rights pursuant to Section 2.12, provided, however, that no Investors shall have the rights of first refusal under this Section 3.3 unless such Investor is a Major Investor that is a venture capital fund may assign or transfer after the effectiveness of such rights to its Affiliatestransfer.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (NanoString Technologies Inc), Investors’ Rights Agreement (NanoString Technologies Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, for so long as any Major Investor owns any shares of outstanding Preferred Stock, the Company hereby grants to each such Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners partners, members, directors, entities under common control and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by certified mail (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty (20) calendar days after receipt of the giving of Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all outstanding options, warrants and other convertible and or exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase which purchases all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) calendar day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, that Investors which is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion of the Preferred Stock then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common common stock issued and held, or issuable upon conversion of the Preferred Stock held then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that referred to in the Notice which Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety sixty (9060) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to applicable:
(i) to the issuance or sale of shares of Common Stock (or options therefor) other securities, or rights convertible into, or entitling the holder thereof to employeesreceive directly or indirectly, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of additional shares of Common Stock registered under (hereinafter referred to as “Common Stock Equivalents”), to employees, consultants or directors of the ActCompany or persons having a professional relationship with or providing services to the Company, directly or pursuant to a stock option plan or agreement or other stock option arrangements so long as such plan, agreements or arrangements have been approved by the Board of Directors of the Company (iiiincluding a majority of the directors designated by the holders of the Preferred Stock);
(ii) to the issuance or sale of securities pursuant to the conversion Common Stock or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities Common Stock Equivalents in connection with a bona fide acquisition of technology by the Company or a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors of the Company (which approval shall include including a majority of the vote directors designated by the holders of a the Preferred DirectorStock), ;
(viii) to the issuance and or sale of Series 7 Preferred Common Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stockor Common Stock Equivalents, warrants or other securities or rights in connection with a bona fide loan transaction or bank financing or otherwise in connection with commercial credit and equipment financing arrangements or to persons or entities with which a strategic partner of the Company, in each case as approved by the Board of Directors of the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include including a majority of the affirmative vote directors designated by the holders of the Preferred Stock);
(iv) to or after consummation of a bona fide, firmly underwritten public offering of shares of Common Stock, registered under the Act pursuant to a registration statement on Form S-1;
(v) to the issuance of Common Stock or Common Stock Equivalents issued or issuable pursuant to a resolution unanimously approved by approved by the Board of Directors of the Company (including a majority of the directors designated by the holders of the Preferred DirectorStock), or ;
(viivi) to the issuance of securities to non-Affiliates that are specifically deemed not to be subject pursuant to the right conversion or exercise of first offer in this Section 2.4 convertible or exercisable securities that are, or have been, approved for issuance by a majority of the Company’s Board of Directors (including a majority of the directors designated by the written consent or affirmative vote holders of the Major Investors holding greater than fifty percent Preferred Stock);
(50%vii) to the issuance of securities in connection with a split or subdivision of the Registrable Securities then held outstanding shares of Common Stock or a dividend or other distribution payable in additional shares of Common Stock or Common Stock Equivalents without payment of any consideration by all Major Investors. In addition such holder for the additional shares of Common Stock or the Common Stock Equivalents (including the additional shares of Common Stock issuable upon conversion or exercise thereof); or
(viii) to the foregoing, issuance of any shares of Series E Preferred Stock pursuant to the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in Series E Agreement or any subsequent offering of Shares if (i) at closing thereof or the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) issuance of the Act and (ii) such offering any shares of Shares is otherwise being offered only to accredited investorsCommon Stock upon conversion of shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock.
(e) The rights provided right of first offer set forth in this Section 2.4 may not be assigned or transferred by any except to affiliates of a Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (INPHI Corp), Investors’ Rights Agreement (Inphi Corp)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company or any of its subsidiaries of their respective Shares (as hereinafter defineddefined below) (the “Right of First Offer”). For purposes of this Section 2.42.3, the term “Major Investor” Investor includes any general partners partners, managing members and affiliates of a Major Investor, including Affiliated Funds. A Major Investor shall be entitled who chooses to apportion exercise the Right of First Offer may designate as purchasers under such right of first offer hereby granted it among itself and or its partners and Affiliates or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its or its subsidiaries’ capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 20 calendar days after delivery of the giving of RFO Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the sum of (i) the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities) and exercisable securities then outstanding)(ii) shares of Common Stock reserved for issuance or issuable to employees, consultants or directors pursuant to a stock option plan, restricted stock option plan, or other stock plan approved by the Board of Directors. Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) -day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion and exercise of all convertible or exercisable securities then held, by such Fully-Exercising Major Investor bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b) hereofSection 2.3(b), offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of after the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right Right of first offer First Offer in this Section 2.4 2.3 shall not be applicable to (i) the issuance of securities in connection with stock dividends, stock splits or similar transactions for which an adjustment is made pursuant to Section 4(d)(i) or Section 4(d)(ii) of Article IV(B) of the Restated Certificate; (ii) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for directors of the primary purpose of soliciting Company, directly or retaining their services pursuant to a stock option plan, restricted stock purchase plans or agreements other stock plan approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (iiiii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under or Preferred Stock (or options or warrants therefore) that may be issued to leasing companies, landlords, advisors, lenders and other providers of goods and services to the ActCompany, in each case approved by the Board of Directors; (iiiiv) Common Stock or Preferred Stock (or options or warrants therefore) that may be issued to entities in connection with joint ventures, development projects, acquisitions, or other strategic transactions, in each case approved by the Board of Directors; (v) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofof this Agreement, including without limitation, warrants, notes or options; (ivvi) the issuance of securities for consideration other than cash in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale acquisition or exchange of stock or otherwise, similar business combination approved by the Company’s Board of Directors (which approval shall include including at least one Preferred Director (as defined in the vote of a Preferred DirectorRestated Certificate), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or ; (vii) the issuance or sale of securities Series A Preferred Stock or the Common Stock issuable upon conversion of the Series A Preferred Stock; (viii) the issuance or sale of Series B Preferred Stock or the Common Stock issuable upon conversion of the Series B Preferred Stock; (ix) the issuance or sale of Series C Preferred Stock or the Common Stock issuable upon conversion of the Series C Preferred Stock; (x) the issuance or sale of Series D Preferred Stock or the Common Stock issuable upon conversion of the Series D Preferred Stock; (xi) the issuance or sale of Series E Preferred Stock or the Common Stock issuable upon conversion of the Series E Preferred Stock; (xii) the issuance or sale of Series E-1 Preferred Stock or the Common Stock issuable upon conversion of the Series E-1 Preferred Stock; (xiii) the issuance or sale of Series F Preferred Stock or the Common Stock issuable upon conversion of the Series F Preferred Stock; (xiv) Common Stock issued or issuable to non-Affiliates that are specifically holders of Series F Preferred Stock pursuant to Section 4(b)(ii) and Section 6(b) of the Restated Charter; (xv) the issuance of Common Stock in a Qualified IPO; or (xvi) Common Stock, Preferred Stock or options or warrants to purchase Common Stock or Preferred Stock, the issuance of which is deemed not or determined to be excluded from the Conversion Price (as defined in the Restated Certificate) adjustments otherwise required pursuant to Section (4)(d)(iii) of Article IV(B) of the Restated Certificate by the affirmative vote of at least 66 and 2/3% of the then outstanding shares of Preferred Stock, voting together as a single class, subject to the right of first offer Anti-Dilution Consent Rights (as defined in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%Restated Certificate) of the Registrable Securities then held by all Major Investorstherein. In addition to the foregoing, the right of first offer in this Section 2.4 2.3 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares securities issuance, if (iA) at the time of such offeringsubsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Securities Act, and (iiB) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided . For avoidance of doubt, the Investors agree that this Section 2.3 operates so that the parties to the Prior Agreement do not have the contractual right under the Prior Agreement or this Agreement to purchase the Series F Preferred Stock or Common Stock issuable upon conversion thereof. All references to the Company in this Section 2.4 may not 2.3 shall be assigned or transferred by deemed to include any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliatesapplicable subsidiary of the Company.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Tintri, Inc.), Investors’ Rights Agreement (Tintri, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor Holder a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes Holder shall include any general partners partners, members and affiliates of a such Major InvestorHolder. A Major Investor Holder shall be entitled to apportion the right of first offer hereby granted it among itself and its partners partners, members and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor Holder in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by certified mail (“Notice”) to the Investors each Major Holder stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty Within fifteen (2015) calendar days after delivery of the giving of Notice, each the Major Investor Holder may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares which equals the proportion that equals the number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, by such Major Holder bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities) (“Pro-Rata Portion”). The Company shall promptly, in writing, inform each Major Holder which purchases its Pro-Rata Portion (“Fully-Exercising Major Holder”) of any other Major Holder’s failure to do likewise. During the ten-day period commencing after such information is delivered, each Fully-Exercising Major Holder shall be entitled to obtain that portion of the Shares not subscribed for by the Major Holders which is equal to the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, by such Investor Fully-Exercising Major Holder bears to the total number of shares of Common Stock issued and held, or issuable upon conversion of the Company Preferred Stock then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptlyheld, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Holders who wish to purchase some of the unsubscribed shares. This step shall be repeated until all unsubscribed shares have been allocated or until the Fully-Exercising Investors (assuming full conversion and exercise no longer desire to receive an allocation of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that which Major Investors Holders are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of after the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors Holders in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employeesofficers, directorsdirectors or employees of, or consultants and to, the Company or a subsidiary under a stock option or other service providers for the primary purpose of soliciting equity incentive plan or retaining their services pursuant to plans or agreements agreement approved by and in a manner determined by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Directorincluding stock grants to officers, Series 5 Directordirectors, Series 6 Director employees or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”consultants); (ii) the issuance of securities pursuant to a bona fidethe acquisition of another corporation or entity by the Company by way of merger, firmly underwritten public offering purchase of shares all or substantially all of Common Stock registered under the Act, assets of the other corporation or stock for stock exchange approved by the Board of Directors; (iii) the issuance of securities, not primarily for equity financing purposes, to academic research institutions, financial institutions, strategic partners or lessors in connection with commercial credit arrangements, equipment financings, debt financings, strategic partnerships, research and development partnerships, licensing or collaborative arrangements, joint marketing agreements or similar transactions approved by the Board of Directors; (iv) shares issued upon conversion of the Series A Preferred Stock sold pursuant to the Purchase Agreement; (v) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofhereof options, warrants, notes or other rights to acquire securities of the Company; (ivvi) the issuance of securities issued in connection with a bona fide business acquisition stock splits, stock dividends or like transactions for which an adjustment to the respective conversion prices of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by Preferred Stock is made pursuant to the Company’s Board then current Certificate of Directors Incorporation; or (which approval shall include vii) upon the vote closing of a public offering of the Company’ securities pursuant to the Act in which all shares of Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock are automatically converted to Common Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance Company’s then current Certificate of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsIncorporation.
(e) The rights provided right of first offer set forth in this Section 2.4 may not be assigned or transferred transferred, except that (i) such right is assignable by each Major Holder to any wholly owned subsidiary or parent of, or to any corporation or entity that is, within the meaning of the Act, controlling, controlled by or under common control with, any such Major Holder, (ii) any partner or retired partner of any such Investor Major Holder which is a partnership or any member or retired member of any Major Investor; provided, however, that a Major Investor that Holder which is a venture capital fund may assign or transfer limited liability company, and (iii) such rights to its Affiliatesright is assignable between and among any of the Major Holders.
(f) The covenants set forth in right of first offer granted under this Section 2.4 shall terminate and be of no further force or and effect upon the consummation effective date of (i) a Qualified Public Offering or (ii) a Liquidation Eventthe Company’s registration statement filed in connection with the IPO and shall not be applicable to any shares sold pursuant thereto.
Appears in 2 contracts
Sources: License Agreement (Orexigen Therapeutics, Inc.), License Agreement (Orexigen Therapeutics, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates other Affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and other Affiliates in such proportions as it deems appropriate. .Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding, including the Preferred Stock) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding, including the Preferred Stock). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor bears to the total number of shares of Common Stock (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to issued and held, or issuable upon conversion of the number of shares of Common Preferred Stock held then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employeessecurities exempted under Article W, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%B(4)(d)(ii) of the Registrable Securities then held by all Major InvestorsRestated Certificate. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital an investment fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) the closing of a Qualified Public Offering or (ii) after the consummation of a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Sumo Logic, Inc.), Investors’ Rights Agreement (Sumo Logic, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor Holder a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “a Major Investor” Holder includes any general partners and affiliates Affiliates of a Major InvestorHolder. A Major Investor Holder shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities directly or indirectly convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (the “Shares”), the Company shall first make an offering of such Shares to each Major Investor Holder in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by certified mail (the “Notice”) to the Investors Major Holders stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within Within twenty (20) calendar days after receipt of the giving of Notice, each the Major Investor Holder may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, held by such Investor Major Holder bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities) (the Major Holder’s “Pro Rata Share”). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion its Pro Rata Share of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that Major Investors Holders are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection Subsection 2.4(b) hereof, the Company may, during the ninety (90) 60-day period following the expiration of the period provided in subsection Subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 30 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors Holders in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) to the issuance or sale of shares of Common Stock (or options therefor) securities to employees, directors, consultants and other service providers for or directors of the primary purpose of soliciting Company directly or retaining their services pursuant to plans a stock option plan or agreements restricted stock plan approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Directorincluding at least three Preferred Directors, Series 5 Director, Series 6 Director or Series 7 Director (each as such term is defined in that certain Amended and the Restated Voting AgreementCertificate), by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance to or after consummation of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the ActQualified Public Offering, (iii) to the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as or in connection with a stock split, recapitalization, stock dividend or other ratable distribution of property or similar transaction approved by the date hereofBoard (including at least three Preferred Directors), (iv) to the issuance of securities in connection with a bona fide equipment leasing arrangements, bank financings, business acquisition acquisitions or mergers, joint ventures, licensing arrangements, research and development activity, arrangements regarding the distribution or manufacture of or by the Company, whether by merger, consolidation, sale of assets, sale ’s products or exchange of stock services or otherwise, other partnering arrangements which are not primarily for equity financing purposes and are approved by the Company’s Board of Directors (which approval shall include the vote of a including at least three Preferred DirectorDirectors), (v) to any securities of the issuance Company outstanding as of the date hereof or securities issued in connection with the exercise or conversion thereof and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities pursuant to non-Affiliates that are specifically deemed not to be subject to certain Agreement and Plan of Reorganization by and among the right Company, BoxTone and certain other parties thereto, dated on or about the date of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsAgreement.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants right of first offer set forth in this Section 2.4 shall terminate and may only be assigned or transferred in connection with a transfer that complies with the requirements of no further force or effect upon the consummation Section 1.11 of (i) a Qualified Public Offering or (ii) a Liquidation Eventthis Agreement.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (GOOD TECHNOLOGY Corp), Investors’ Rights Agreement (GOOD TECHNOLOGY Corp)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fullythe Full-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)Investors.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) issued to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered pursuant to a registration statement under the ActAct resulting in proceeds to the Company of at least $30,000,000 in the aggregate, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, provided that such issuances are approved by the Company’s Board of Directors, including at least one of the Preferred Directors (which approval shall include as such term is defined in the vote of a Preferred DirectorRestated Certificate), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are approved by the Company’s Board of Directors, including at least one of the Preferred Directors (as such term is defined in the Restated Certificate), and are primarily for other than equity financing purposes, (vi) the issuance of securities pursuant to any equipment leasing arrangement or debt financing arrangement, which arrangement is approved by the Board of Directors, including at least one of the Preferred Directors (as such term is defined in the Restated Certificate), and is primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director)purposes, or (vii) the issuance of stock, warrants or other securities as a bona fide gift to non-Affiliates that are specifically deemed not to be subject to the right of first offer any charitable organization described in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%501(c)(3) of the Registrable Securities then held Internal Revenue Code, provided such issuances are approved by all Major Investorsthe Board, including at least one (1) of the Preferred Directors, and are for non-equity financing purposes, or (viii) the issuance of Shares (as defined in the Series F Agreement), or any securities issued pursuant to the conversion thereof, issued pursuant to Section 1.3 of the Series F Agreement. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Okta, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after Notice by the giving of NoticeCompany in accordance with Section 3.5, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is givengiven in accordance with Section 3.5, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of the Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorDirectors, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the ActAct whereby all shares of Preferred Stock convert into Common Stock, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of on the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, otherwise approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director)Directors, (v) the issuance and sale of Series 7 B Preferred Stock pursuant to the Series 7 Purchase B Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationshipsrelationships or in connection with strategic transactions, provided such issuances are primarily for non-other than equity financing purposes (which approval shall include and provided that such issuances are approved by the affirmative vote Board of a Preferred Director)Directors, or (vii) the issuance of stock, warrants or other securities or rights pursuant to non-Affiliates equipment lease financings or bank credit arrangements, provided such issuance are primarily for other than equity financing purposes and provided that such issuances are specifically deemed not to be subject to the right of first offer in this Section 2.4 approved by the written consent Board of Directors, or affirmative vote (viii) the issuance of securities that, with the unanimous approval of the Major Investors holding greater than fifty percent (50%) Board of Directors, are not offered to any existing stockholder of the Registrable Securities then held by all Major InvestorsCompany. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliatesan affiliated venture capital fund or partner of such venture capital fund.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) the Company’s sale of its Common Stock in a Qualified Public Offering firm commitment underwritten public offering pursuant to a registration statement on Form S-1 under the Act that results in aggregate proceeds to the Company in excess of $25,000,000 or (ii) a Liquidation Event, as that term is defined in the Company’s Restated Certificate of Incorporation (as amended from time to time).
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Veeva Systems Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes (i) if the Major Investor is a partnership, limited liability company, corporation or other entity, any general partners partners, members and affiliates of a such Major Investor, or (ii) if the Major Investor is an individual, the immediate family members of such Major Investor and trusts for the benefit of such Major Investor or his or her immediate family members. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners partners, members and Affiliates affiliates, immediate family members or trusts in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) 15 calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion such Major Investor’s pro rata share of the Shares. For purposes of this Section 2.4, such Shares that equals pro rata share is the proportion that ratio of (i) the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, owned by such Major Investor bears to (ii) the total number of shares of Common Stock of the Company then outstanding (assuming full conversion for both the numerator and denominator of such calculation, the exercise of all outstanding options and warrants, and the conversion into Common Stock of all outstanding securities convertible and exercisable securities then outstanding)into Common Stock, including the Voting Preferred Stock) immediately prior to the issuance of the Shares. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is givenThereafter, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which the Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held then owned by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held then owned by all Fully-Exercising Major Investors (assuming full conversion for both the numerator and denominator of such calculation the exercise of all outstanding options and warrants and the conversion into Common Stock of all outstanding securities convertible and exercisable securities then outstanding)into Common Stock, including the Voting Preferred Stock) who wish to purchase some of the unsubscribed Shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) -day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options or warrants therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to written plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities Preferred Stock, Common Stock or the Warrants pursuant to a bona fide, firmly underwritten public offering of shares of the Purchase Agreement or Common Stock registered under issued upon conversion of the Act, Voting Preferred Stock issued pursuant to the Purchase Agreement or Voting Preferred Stock pursuant to the Warrants or Common Stock issued upon conversion of such Voting Preferred Stock; (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, ; (iv) the Company’s first sale of its securities pursuant to its Initial Offering; (v) securities issued or issuable pursuant to real estate transactions, equipment lease financings or commercial lending arrangements, provided such issuances are primarily for other than equity financing purposes and are approved by the Board of Directors of the Company; (vi) securities issued pursuant to a stock dividend, stock split or similar reorganization; (vii) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, otherwise that is unanimously approved by the Company’s Board of Directors Directors; or (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (viviii) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationshipspursuant to strategic transactions, provided such issuances are primarily for non-other than equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to nonand are approved by at least two-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote thirds of the Major Investors holding greater than fifty percent (50%) members of the Registrable Securities then held by all Major InvestorsBoard of Directors of the Company. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred (but only with all related obligations) by any Major Investor; provided, however, that a Major Investor to a transferee or assignee of such securities that (i) is a venture capital fund may assign subsidiary, parent, partner, limited partner, retired partner, member, former member or transfer stockholder of a Major Investor, (ii) is a Major Investor’s family member or trust for the benefit of an individual Major Investor, or (iii) after such rights assignment or transfer, holds at least 50,000 shares of Registrable Securities (subject to its Affiliatesappropriate adjustment for stock splits, stock dividends, combinations or the like).
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation earlier to occur of the following: (i) a Qualified Public Offering the Initial Offering; or (ii) a Deemed Liquidation Event, as described and defined in the Certificate of Incorporation.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Shotspotter, Inc), Investors’ Rights Agreement (Shotspotter, Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.3, the term “Major Investor” Investor includes (i) any general partners partners, managing members and affiliates of a Major Investor, including Affiliated Funds, and (ii) SVBV, for so long as SVBV continues to hold at least 80% of the Registrable Securities originally purchased by SVBV. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 20 calendar days after delivery of the giving of RFO Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that (“Pro Rata Portion”) which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all outstanding convertible and or exercisable securities then outstandingsecurities). Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing thereunder. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) -day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion and exercise of all convertible or exercisable securities then held, by such Fully-Exercising Major Investor bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all outstanding convertible and or exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to (i) the issuance Common Stock issued pursuant to stock dividends, stock splits or sale of similar transactions; (ii) shares of Common Stock (issued or options therefor) issuable to employees, directors, consultants and other service providers or directors of the Company for the primary purpose of soliciting or retaining their services directly or pursuant to plans a stock option plan or agreements restricted stock plan approved by the Company’s Board Board; (iii) capital stock, or options or warrants to purchase capital stock, issued to financial institutions or lessors in connection with commercial credit arrangements, equipment financings, commercial property lease transactions or similar transactions; provided such issuances are for other than primarily equity financing purposes; (iv) shares of Directors Common Stock or Preferred Stock issuable upon exercise of warrants (which approval shall include the affirmative vote y) outstanding as of the Series 4 Director, Series 5 Director, Series 6 Director date hereof or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between z) which the Company and certain stockholders, dated is contractually obligated to issue as of the date hereof; (v) capital stock, collectivelyor warrants or options to purchase capital stock, issued in connection with bona fide acquisitions, mergers or similar transactions, the “Preferred Directors”)terms of which are approved by the Board; (iivi) the issuance shares of securities Series D Preferred Stock issued or sold pursuant to a bona fide, firmly underwritten public offering of the Purchase Agreement and shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the issuable or issued upon conversion or exercise of convertible or exercisable securities outstanding as of the date hereofSeries A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock; (ivvii) the issuance shares of securities Common Stock issuable or issued in a public offering prior to or in connection with a bona fide business acquisition which all outstanding shares of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant will be converted to the Series 7 Purchase Agreement, Common Stock; (viviii) the issuance shares of stock, warrants Common Stock issuable or other securities or rights to persons or entities issued with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Directormajority of the then outstanding Resistrable Securities set forth in Section 1.1(g)(i), or voting together as a single class and not as separate series, on an as-if converted to Common Stock basis (vii) provided that Major Investors holding such Registrable Securities consent to the issuance waiver of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 to such issuance (voting together as a single class and not as separate series, on an as-if converted to Common Stock basis)); and (ix) capital stock issued or issuable to an entity as a component of any business relationship with such entity for the purpose of (A) joint venture, technology licensing or development activities, (B) distribution, supply or manufacture of the Company’s products or services or (C) any other arrangements involving corporate partners that are primarily for purposes other than raising capital, the terms of which business relationship with such entity are approved by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major InvestorsBoard. In addition to the foregoing, the right of first offer in this Section 2.4 2.3 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares securities issuance, if (i) at the time of such offeringsubsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Securities Act, and (ii) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.3, the term “Major Investor” Investor includes any general partners partners, managing members and affiliates of a Major Investor, including Affiliated Funds. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar Within 15 days after delivery of the giving of RFO Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares which equals the proportion that equals the number of shares of Registrable Securities issued and held, or issuable upon conversion and exercise of all convertible or exercisable securities then held, by such Major Investor on an as-converted basis bears to the sum of (A) the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all convertible or exercisable securities) and (B) shares of Common Stock issuable to employees, consultants or directors pursuant to a stock option plan, restricted stock plan, or other stock plan approved by the Board of Directors. Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing. The Company shall promptly, in writing, inform each Major Investor that purchases all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the 10-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the Shares for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors that is equal to the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Fully-Exercising Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of after the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to to
(i) the issuance of securities in connection with stock dividends, stock splits or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); similar transactions;
(ii) the issuance of securities Common Stock, issued to or issuable to employees, consultants and directors of the Company, pursuant to a bona fideany stock option plan or agreement or other stock incentive program or agreement of the Company approved by the Board of Directors of the Company, firmly underwritten public offering including at least two of shares of Common Stock registered under the Act, Preferred Director Representatives then in office;
(iii) the issuance of securities to financial institutions, equipment lessors, brokers or similar persons in connection with commercial credit arrangements, equipment financings, commercial property lease transactions or similar transactions, provided such issuances are for other than primarily equity financing purposes and provided further that the terms of which are approved by the Board of Directors of the Company, including at least two of the Preferred Director Representatives then in office;
(iv) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofof this Agreement, (iv) the issuance of securities in connection with a bona fide business acquisition of including without limitation, warrants, notes or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), options;
(v) the issuance and sale of Series 7 the Common Stock issuable upon conversion of the Preferred Stock pursuant to the Series 7 Purchase Agreement, Stock;
(vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer Common Stock in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.IPO;
Appears in 1 contract
Sources: Investors’ Rights Agreement (Acelrx Pharmaceuticals Inc)
Right of First Offer. Subject to the terms and conditions -------------------- specified in this Section paragraph 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major An Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for for, any shares of, of any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by certified mail (“"Notice”") to the Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty (20) calendar days after the giving of the Notice, each Major the Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, held by such Investor (assuming full conversion, exercise and exchange of all convertible, exercisable or exchangeable securities held by such Investor) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion conversion, exercise and exercise exchange of all convertible and convertible, exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingor exchangeable securities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section paragraph 2.4 shall not be applicable to (i) to the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, employees or directors of or consultants and other service providers to the Company for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Directorservices, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance to or after consummation of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock Stock, registered under the ActAct pursuant to a registration statement on Form S-1 or SB-2, with aggregate proceeds to the Company of at least $20,000,000, (iii) the issuance of securities pursuant to the conversion conversion, exercise or exercise exchange of convertible convertible, exercisable or exercisable exchangeable securities, provided such securities outstanding as were issued prior to the creation of the date hereofor in compliance with this Right of First Offer, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are for other than primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director)purposes, or (viivi) to the sale and issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right shares of first offer in this Section 2.4 by the written consent Series A Preferred Stock, Series B Preferred Stock or affirmative vote Series C Preferred Stock of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsCompany.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.10, the Company hereby grants to each Major Investor (as hereinafter defined) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.10, the term “a Major Investor” Investor shall mean any Investor who holds 200,000 shares of Registrable Securities. For purposes of this Section 2.10, Investor includes any general partners and affiliates of a Major an Investor. A Major An Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by nationally recognized overnight courier (“"Notice”") to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within Within twenty (20) calendar days after the giving of the Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series B Preferred Stock then held, held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all outstanding convertible and exercisable securities securities, options or warrants) issued and held, or issuable upon conversion of the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series B Preferred Stock then outstanding)held by all the Major Investors. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (a “"Fully-Exercising Major Investor”") of any other Major Investor’s investor's failure to do likewise. During the ten (10) ten-day period commencing after such information is given, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, that Investors which is equal to the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series B Preferred Stock then held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock issued and held, or issuable upon conversion of the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series B Preferred Stock then held by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major referred to in the Notice which Investors are entitled to obtain pursuant to subsection 2.4(b2.10(b) are not elected to be obtained as provided in subsection 2.4(b2.10(b) hereof, the Company may, during the ninety (90) 60-day period following the expiration of the period provided in subsection 2.4(b2.10(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.10 shall not be applicable to (i) to the issuance or sale of 1,000,000 shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers employees for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Directoremployment, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance to or after consummation of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock Stock, registered under the ActAct pursuant to a registration statement on Form S-1, (iii) to the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) to the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), or (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, relationships provided such issuances are for other than primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorspurposes.
(e) The rights provided right of first offer set forth in this Section 2.4 2.10 may not be assigned or transferred by any Major Investor; providedtransferred, however, except that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering such right is assignable by each Holder to any wholly owned subsidiary or parent of, or to any corporation or entity that is, within the meaning of the Act, controlling, controlled by or under common control with, any such Holder, and (ii) a Liquidation Eventsuch right is assignable between and among any of the Holders.
Appears in 1 contract
Sources: Investors' Rights Agreement (Micro Therapeutics Inc)
Right of First Offer. Subject to (a) Except in the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right case of first offer with respect to future sales by the Company of its Shares Excluded Securities (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time ) the Company proposes shall not issue, sell or exchange, agree to offer any shares ofissue, sell or exchange, or securities reserve or set aside for issuance, sale or exchange, any (A) shares of Common Stock, (B) any other equity security of the Company, (C) any debt security of the Company which, by its terms, is convertible into or exchangeable or exercisable for any shares ofequity security of the Company, its capital stock (including, without limitation, D) any unit security of the Company that is a combination of debt and equity or (E) any option, warrant or other right to subscribe for, purchase or otherwise acquire any equity securities) (“Shares”)security or any such debt security of the Company, unless in each case the Company shall have first make an offering of such Shares offered to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) sell to the Investors stating and the Series A Investors such securities (i) its bona fide intention to offer such Sharesthe "Offered Securities"), (ii) the number of such Shares to be offered and (iii) the at a price and on such other terms upon as shall have been specified by the Company in writing delivered to each of the Investors and the Series A Investors (the "Offer"), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from the date it proposes is delivered by the Company to offer such Sharesthe Investors and the Series A Investors.
(b) By written notification received by Each of the Company within twenty Investors shall have the right to purchase up to its pro rata share (20as defined below) calendar days of the Offered Securities. For the purposes of this Section (b), each Investor's "pro rata share" shall be that amount of the Offered Securities which would result in such Investor owning the same percentage of the Company's issued and outstanding Common Stock after the giving issuance of Notice, Offered Securities as such Investor owned immediately prior to the issuance (assuming in each Major Investor may elect to purchase, at case the price and on the terms specified in the Notice, up to that portion issuance of such Shares that equals the proportion that the number of shares of all Common Stock issued and held, or issuable upon conversion of the Series A Convertible Preferred Stock then held, by such Investor bears to and Series B Convertible Preferred Stock and of all shares issuable upon the total number of shares of Common Stock conversion of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingOffered Securities).
(c) If all Shares that Major Investors are entitled Notice of an Investor's intention to obtain pursuant accept, in whole or in part, an Offer shall be evidenced by a writing signed by the Investor and delivered to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during prior to the ninety (90) end of the 30-day period following the expiration of such Offer, setting forth such portion of the period provided in subsection 2.4(b) hereof, offer Offered Securities as the remaining unsubscribed portion Investor elects to purchase (the "Notice of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewithAcceptance").
(d) The right In the event that the Investors and the Series A Investors do not elect to purchase all of first offer in this the Offered Securities which they are entitled to purchase under Section 2.4 6.15(b) hereof and Paragraph 6(p)(ii) of the Series A Agreement, the Company shall not be applicable to within 5 days of the earlier of (iA) the issuance receipt of all of the Notices of Acceptances from the Investors pursuant to subsection (c) above and from the Series A Investors pursuant to Section 6(p)(iii) of the Series A Agreement or sale (B) the expiration of the 30-day period provided in Section 6.15(a) provide each of the Investors who have delivered a Notice of Acceptance with written notice of the number of Offered Securities which have not been accepted by the Investors or the Series A Investors (the "Refused Shares"), and each such Investor shall have 10 days to inform the Company in writing of its intention to purchase its pro rata share of such Refused Shares. For the purposes of this subsection (d), "pro rata share" shall mean the percentage obtained by dividing the number of Securities, Series A Securities and other shares of Common Stock (or options therefor) owned and to employees, directors, consultants and other service providers for the primary purpose be purchased by an Investor who has delivered a Notice of soliciting or retaining their services Acceptance pursuant to plans or agreements approved subsection (c) above by the Company’s Board total number of Directors (which approval shall include the affirmative vote of the Series 4 DirectorSecurities, Series 5 Director, Series 6 Director A Securities or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of other shares of Common Stock registered under the Act, (iii) the issuance owned and to be purchased by Investors who have delivered Notices of securities Acceptance pursuant to the conversion subsection (c) above or exercise by Series A Investors who have delivered Notices of convertible or exercisable securities outstanding as Acceptance pursuant to Paragraph 6(p)(iii) of the date hereofSeries A Agreement. Upon the expiration of such ten-day period, (iv) the issuance Company shall have 90 days to sell all or any part of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant such Refused Shares as to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes not received a notice from the Investors pursuant to subsection 6.15(c) or this subsection (which approval shall include d) or from the affirmative vote of a Preferred Director), Series A Investors pursuant to Paragraphs 6(p)(iii) or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%6(p)(iv) of the Registrable Securities then held by Series A Agreement to any other person or persons, but only upon terms and conditions in all Major Investors. In addition material respects, including, without limitation, unit price and interest rates (but excluding payment of legal fees of counsel of the purchaser), which are no more favorable, in the aggregate, to such other person or persons or less favorable to the foregoingCompany that those set forth in the Offer. Upon the closing of the sale to such other person or persons of all the Refused Securities, which shall include payment of the purchase price to the Company in accordance with the terms of the Offer, the right Investors shall purchase from the Company, and the Company shall sell to the Investors, the Offered Securities in respect of first offer in this Section 2.4 shall not be applicable with respect which a Notice of Acceptance was delivered to any Investor in any subsequent offering of Shares if (i) the Company by an Investor, at the time terms specified in the Offer. The purchase by an Investor of such offeringany Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Investor is not an “accredited investor,” as that term is then defined of a purchase agreement relating to such Offered Securities satisfactory in Rule 501(a) of form and substance to the Act Investor and (ii) such offering of Shares is otherwise being offered only to accredited investorsits counsel.
(e) The rights provided In each case, any Offered Securities not purchased by the Investors or other person or persons in this Section 2.4 accordance with subsections 6.15(b), (c) and (d) hereof or by the Series A Investors in accordance with Paragraph 6(p) of the Series A Agreement may not be assigned sold or transferred by any Major Investor; providedotherwise disposed of until they are again offered to the Investors and the Series A Investors under the procedures specified in subsections 6.15(a), however(b), that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates(c) and (d) hereof and in Paragraph 6(p) of the Series A Agreement.
(f) The covenants set forth in rights of the Investors and the Series A Investors under this Section 2.4 6.15 shall terminate and not apply to the following securities (the "Excluded Securities"):
(A) Common Stock issued to officers, employees or directors of, or consultants to, the Company, pursuant to any agreement, plan or arrangement approved by the Board of Directors of the Company or a committee thereof, or options to purchase or rights to subscribe for such Common Stock, securities by their terms convertible into or exchangeable for such Common Stock, or options to purchase or rights to subscribe for such convertible or exchangeable securities;
(B) Common Stock issued as a stock dividend or upon any stock split or other subdivision or combination of shares of Common Stock;
(C) Common Stock issued upon conversion of any of the Series B Preferred Stock;
(D) Common Stock issued upon conversion of any other shares of convertible stock of the Company;
(E) securities issued in connection with any acquisition by the Company if the issuance of such securities has been approved by at least 66 2/3% of the Directors;
(F) securities issued by the Company in connection with the redemption of the Series B Convertible Preferred Stock or any other shares of convertible stock of the Company as provided in the Articles of Incorporation, as amended, of the Company; and
(G) securities issued by the Company in connection with any public offering of any securities of the Company pursuant to a registration statement filed by the Company under the Securities Act on any Form other than Form S-8.
(H) additional shares of Series B Convertible Preferred Stock issued by the Company as contemplated by Section 9.1 hereof.
(g) Notwithstanding the provisions of Section 9.4 hereof, the rights under this Section 6.15 shall not be assignable except (A) to a partner of no further force any of the Investors or effect upon retired partner of any of the consummation Investors who retires after the date hereof or the estate of (i) a Qualified Public Offering any such partner or retired partner, or (iiB) a Liquidation Eventto an Affiliate (as such term is defined in Rule 501(b) of the Securities Act) of an Investor. An Investor shall provide the Company with notice of any assignment under this subsection (g) within 10 days after its occurrence.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor who holds shares of Preferred Stock a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor who holds shares of Preferred Stock in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that product of the number of shares Shares times the fraction obtained by dividing (i) the sum of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, by such Investor bears to the total number of shares of (A) Common Stock issuable or issued upon conversion of the Company Preferred Stock then outstanding held by such Major Investor and (assuming full conversion and B) Common Stock issuable upon exercise of all convertible any options or warrants then held by such Major Investor by (ii) the sum of the total number of shares of (A) Common Stock, (B) Common Stock issuable upon the conversion of the Preferred Stock and exercisable securities (C) Common Stock issuable upon any exercise of any options or warrants then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of (A) Common Stock issuable or issued upon conversion of the Preferred Stock then held by such Fully- Exercising Investor and (B) Common Stock issuable upon exercise of any options or warrants then held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of (A) Common Stock, (B) Common Stock held by all Fully-Exercising Major Investors issuable upon the conversion of the Preferred Stock and (assuming full conversion and C) Common Stock issuable upon any exercise of all convertible and exercisable securities any options or warrants then outstanding).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company approved by the Company’s Board of Directors, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 C Preferred Stock pursuant to the Series 7 Purchase C Agreement, or (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-other than equity financing purposes (and which approval shall include the affirmative vote of issuances have been approved by a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote majority of the Major Investors holding greater than fifty percent (50%) Board of the Registrable Securities then held by all Major InvestorsDirectors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that Investor to a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliatescompetitor of the Company (as determined in good faith by the Board of Directors of the Company).
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) the Company’s sale of its Common Stock or other securities pursuant to a Qualified Public Offering Offering, as that term is defined in the Restated Certificate or (ii) a Liquidation Event, as that term is defined in the Restated Certificate.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor and the Major Investors Groups listed in Exhibit D hereto (as long as each Major Investors Group continues to hold in the aggregate at least 5% of the Company’s voting rights) (collectively for the purpose of this Section 2.3, “Investors”) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled or a Major Investors Group who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners or affiliates, including Affiliated Funds and Affiliates any member of the Major Investors Groups, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor and each Major Investors Group in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors and to the shareholders designated as representatives for this purpose by each of the Major Investors Groups stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 15 calendar days after delivery of the giving of RFO Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock all convertible securities then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities), provided that a Major Investors Group may only elect to purchase at least 5% of the Shares. Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing thereunder. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) -day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion of all convertible securities then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held by all Fully-Exercising Major Investors then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 90 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors and the Major Investors Groups in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to (i) the issuance of securities in connection with stock dividends, stock splits or similar transactions; (ii) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for directors of the primary purpose of soliciting Company, directly or retaining their services pursuant to a stock option plan, restricted stock purchase plans or agreements other stock plan approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition acquisition, merger or similar transaction, the terms of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, which are approved by the Company’s Board of Directors Directors; (which approval shall include iv) the vote issuance or sale of a the Series C Preferred Director)Stock or the Common Stock issuable upon conversion of the Series A Preferred Stock, the Series A-l Preferred Stock, the Series B Preferred Stock, the Series B-l Pr▇▇▇rred Stock and the Series C Preferred Stock; (v) the issuance and sale of Series 7 Preferred Common Stock pursuant to the Series 7 Purchase Agreement, in a Qualified IPO; or (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of at least a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote majority of the Major Investors holding greater than fifty percent (50%) then outstanding shares of the Registrable Securities then held by all Major InvestorsSeries C Preferred Stock, voting together as a class. In addition to the foregoing, the right of first offer in this Section 2.4 2.3 shall not be applicable with respect to any Major Investor in or to any member of a Major Investors Group and any subsequent offering of Shares securities issuance, if (ix) at the time of such offeringsubsequent securities issuance, the Major Investor or such member of the Major Investor Group is not an “accredited investor,” ”, as that term is then defined in Rule 501(a) of under the Act Securities Act, and (iiy) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investorsinvestors according to the unanimous written consent of the Company’s Board of Directors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions::
(a) The Company shall deliver a written notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares..
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The At the expiration of such twenty (20) calendar day period, the Company shall promptly, in writing, inform promptly notify each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) calendar day period commencing after the Company has given such information is givennotice to the Fully-Exercising Investors, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock Registrable Securities held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)desiring to purchase such unsubscribed Shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the ten (10) calendar day period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty forty-five (6045) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith..
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale deemed issuance of shares of Common Stock Exempted Securities (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by as defined in the Company’s Board Certificate of Directors Incorporation (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”amended from time to time); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (ix) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (iiy) such offering of Shares is otherwise being offered only to accredited investors..
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.an affiliated venture capital fund.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation earliest to occur of (i) a Qualified Public Offering or the consummation of an Initial Offering, (ii) when the Company first becomes subject to the periodic reporting requirements of Sections 12(g) or 15(d) of the 1934 Act, whichever event shall first occur, or (iii) the consummation of a Liquidation Event.Event or SPAC Transaction.
Appears in 1 contract
Sources: Investors’ Rights Agreement (890 5th Avenue Partners, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates partners, members or affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar Within 20 days after receipt of the giving of Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all outstanding convertible and or exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) ten-day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may shall be entitled to elect to purchase or obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion and exercise of all convertible or exercisable securities then held, by such Fully-Exercising Major Investor bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all outstanding convertible and or exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) -day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.2, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.2, the term “Major Investor” Investor includes any general partners partners, managing members and affiliates of a Major Investor, including Affiliated Funds. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar Within 30 days after delivery of the giving of RFO Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all outstanding convertible or exercisable securities, rights, options and exercisable securities then outstandingwarrants). Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) -day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full issued and held, or issuable upon conversion and exercise of all convertible and or exercisable securities then outstanding) held, by such Fully-Exercising Investor bears to the total number of shares of Common Stock held by all Fully-Exercising Major Investors then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstandingoutstanding shares of Preferred Stock).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of after the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to (i) the issuance of securities in connection with stock dividends, stock splits or similar transactions; (ii) the issuance or sale of shares of Common Stock (or options therefor) to employees, directorsofficers, consultants and or directors of the Company, or other service providers persons performing services for the primary purpose of soliciting Company, directly or retaining their services pursuant to plans a stock option plan or agreements restricted stock plan approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofof this Agreement, including without limitation, warrants, notes or options, or issued pursuant to the Purchase Agreement; (iv) the issuance or sale of the Series C Preferred Stock pursuant to the Purchase Agreement; or (v) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board (1) acquisition of Directors (which approval shall include the vote of a Preferred Director)intellectual property, (v2) the issuance entering into a strategic partnership transaction primarily for a purpose other than raising capital, (3) acquisition of real property or personal property leases, (4) acquisition of marketing rights, or (5) equipment financing or other debt financings, and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance securities of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances which are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to otherwise excluded from the right of first offer in this Section 2.4 by the written consent or affirmative vote or consent of the Major Investors holding greater than fifty percent (50%) holders of at least a majority of the Registrable Securities shares of Preferred Stock of the Company then held by all Major Investorsoutstanding, voting together as a single class on an as-converted basis. In addition to the foregoing, the right of first offer in this Section 2.4 2.3 shall not be applicable with respect to any Investor in and any subsequent offering of Shares securities issuance, if (i) at the time of such offeringsubsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Securities Act, and (ii) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Constellation Alpha Capital Corp.)
Right of First Offer. Subject to the terms and -------------------- conditions specified in this Section 2.4, the Company hereby grants to each Major Investor (as hereinafter defined) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.5, the term “a "Major Investor” " -------------- shall mean any person who holds at least 10% of the Series A Preferred Stock (or the Common Stock issued upon conversion thereof) issued pursuant to the Purchase Agreement, whether through purchase of such shares pursuant to the purchase Agreement or acquisition of such shares thereafter). For purposes of this Section 2.5, Major Investor includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company shall first make an offering of such ------ Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by certified mail (“"Notice”") to the Major Investors stating (i) its bona fide intention to offer ------ such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 15 calendar days after delivery of the giving of Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “"Fully-Exercising Major Investor”") of any other Major Investor’s 's failure to do ------------------------- likewise. During the ten (10) day 10)-day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion and exercise of all convertible or exercisable securities then held, by such Fully-Exercising Major Investor bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section paragraph 2.4 shall not be applicable to (i) to the issuance or sale of up to 414,000 shares of Common Stock (or options therefor) to employees, consultants and directors, consultants and other service providers pursuant to plans or agreements approved by the Board of Directors for the primary purpose of soliciting or retaining their services pursuant to plans services, or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance to or after consummation of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock Stock, registered under the ActAct pursuant to a registration statement on Form S-1 at an offering price of at least $6.46 per share (appropriately adjusted for any stock split, dividend, combination or other recapitalization) and not less than $15,000,000 in the aggregate, or (iii) to the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, or (iv) to the issuance or sale of the Series A Preferred Stock, or (v) to the issuance of securities in connection that, with a bona fide business acquisition unanimous approval of or by the Board of Directors of the Company, whether by merger, consolidation, sale are not offered to any existing shareholder of assets, sale the Company or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which by the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance up to 92,879 shares of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) Common Stock at the time per share price of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsless than $3.23.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Sources: Investors' Rights Agreement (Impac Medical Systems Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.5, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.43.5, the term “Major Investor” includes any general partners and affiliates Affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions::
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The At the expiration of such twenty (20) calendar day period, the Company shall promptly, in writing, inform notify each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) calendar day period commencing after the Company has given such information is givennotice to the Fully-Exercising Investors, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor Registrable Securities (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) issued and held by such Fully-Exercising Investor bears to the total number of shares of Common Stock held by all Fully-Exercising Major Investors of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)) held by all Fully-Exercising Investors who wish to purchase the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(bSection 3.5(b) of this Agreement are not elected to be obtained as provided in subsection 2.4(bSection 3.5(b) hereofof this Agreement, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(bSection 3.5(b) hereofof this Agreement, offer the remaining unsubscribed portion of such Shares to any person Person or persons Persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 3.5 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, Exempted Securities (iiias such term is defined in the Restated Certificate) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) and the issuance and sale of Series 7 B-1 Preferred Stock pursuant to the Series 7 Purchase B-1 Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 3.5 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 3.5 may not be assigned or transferred by any Major Investor; provided, however, that a Investor except to (i) an Affiliate of such Major Investor that is or (ii) to a venture capital fund may assign transferee or assignee who holds after such transfer such rights at least 300,000 shares of Registrable Securities (subject to its Affiliatesappropriate adjustments for any stock split, dividend, combination or other recapitalization).
(f) The covenants set forth in this Section 2.4 3.5 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event, in each case, as such term is defined in the Restated Certificate.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held by all Fully-Exercising Major Investors of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale issuances of shares of Common Carve Out Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and the Restated Voting AgreementCertificate), by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance and sale of securities Series A Preferred Stock pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the ActSeries A Agreement, (iii) the issuance any public offering of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as stock of the date hereof, Company or (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) a majority of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a the Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.47.2, the Company hereby grants to Takeda and each Major Investor Lender a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.47.2, the term “Major InvestorLender” includes any general partners and affiliates Affiliates of a Major InvestorLender. A Major Investor Takeda and each Lender shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of such shares or securities issued in connection with debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to Takeda and each Major Investor Lender in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 8.5 (“Notice”) to Takeda and the Investors Lenders stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty ten (2010) calendar days after the giving of Notice, Takeda and each Major Investor Lender may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the following: (i) with respect to Takeda, fifteen percent (15%) of such Shares; and (ii) with respect to each Lender, such Lender’s respective pro rata portion of eighty five (85%) of such Shares determined in the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, principal outstanding under the Note(s) held by such Investor Lender bears to the total number of shares of Common Stock of principal outstanding under the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase Notes held by all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is givenLenders; provided, each Fully-Exercising Major Investor may that if Takeda does not elect to purchase that the full amount of Shares to which it is entitled to purchase under this Section 7.2(b)(i), then each Lender shall have a right to elect to purchase its pro rata portion of the any such remaining Shares for which Major Investors were entitled to subscribe, but which were not subscribed for purchased by the Major Investors, that is equal Takeda pursuant to the proportion that the number provisions of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingthis Section 7.2(b)(ii).
(c) If all Shares that Major Investors Takeda and the Lenders are entitled to obtain pursuant to subsection 2.4(bSection 7.2(b) of this Agreement are not elected to be obtained as provided in subsection 2.4(bSection 7.2(b) hereofof this Agreement, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(bSection 7.2(b) hereofof this Agreement, offer the remaining unsubscribed portion of such Shares to any person Person or persons Persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to Takeda and the Major Investors Lenders in accordance herewith.
(d) The right of first offer in this Section 2.4 7.2 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) (appropriately adjusted for any stock split, dividend, combination or other recapitalization) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”)Board; (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under in the Act, Initial Public Offering; (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, securities; (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), ; (v) the issuance and sale of Series 7 Preferred Stock pursuant to Conversion Shares upon conversion of the Series 7 Purchase AgreementNotes (but, for the purposes of clarity, not the Equity Securities that trigger the issuance of the Conversion Shares); or (vi) the issuance of stock, warrants or other securities or rights pursuant to persons any equipment leasing arrangement or entities with which the Company has business relationships, debt financing arrangement; provided such issuances are approved by the Board and (except for the Initial Public Offering) are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investorspurposes. In addition to the foregoing, the right of first offer in this Section 2.4 7.2 shall not be applicable with respect to any Investor Lender in any subsequent offering of Shares if (i) at the time of such offering, the Investor Lender is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Securities Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 7.2 may not be assigned or transferred by any Major InvestorLender; provided, however, that a Major Investor Lender that is a venture capital fund fund, private equity investor, investment company or investment advisor may assign or transfer such rights to its Affiliates.
(f) The right of first offer in this Section 7.2, including notice with respect thereto, applicable to Takeda may be waived by Takeda with the written consent of Takeda. The right of first offer in this Section 7.2, including notice with respect thereto, may be waived by all Lenders with the written consent of the Requisite Noteholders; provided, in the event any Lender consents to the waiver of the provisions of this Section 7.2 with respect to any offering of Shares by the Company and actually purchases any such Shares in such offering, then each other Lender who did not consent to such waiver shall be permitted to participate in such offering (which may, at the Company’s option, be in a subsequent closing of such offering on substantially the same terms and conditions) on a pro rata basis (based on the level of participation of the Lender purchasing the largest portion of such Lender’s pro rata share). Takeda’s and the Requisite Noteholders’ right to waive the provisions of this Section 7.2 shall be independent of one another.
(g) The covenants set forth in this Section 2.4 7.2 shall terminate and be of no further force or effect upon (i) the consummation of (i) a Qualified the Initial Public Offering or Offering, (ii) when the Company first becomes subject to the periodic reporting requirements of Sections 12(g) or 15(d) of the Exchange Act and (iii) upon the consummation of a Liquidation EventCorporate Transaction, whichever event shall first occur.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor and Key Holder (the “Rights Holders”), a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor Rights Holder shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor Rights Holder in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Investors Rights Holders stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty fifteen (2015) calendar days after the giving of Notice, each Major Investor Rights Holder may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Investor Rights Holder (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor Rights Holder that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major InvestorRights Holder’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors Rights Holders were entitled to subscribe, but which were not subscribed for by the Major InvestorsRights Holders, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of the Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors Rights Holders are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors Rights Holders in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors including with respect to any plans (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of amendments thereto) adopted after the date hereof, collectivelytwo directors elected solely by any of the holders of Series A-1 Preferred Stock, the holders of Series B Preferred Stock or the holders of Series D Preferred Stock (each a “Preferred Director” and collectively the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, that is approved by the Company’s Board board of Directors (which approval shall include the vote of a Preferred Director)directors, (v) the issuance and sale of Series 7 D Preferred Stock pursuant to the Series 7 Purchase Agreement, D Agreement or (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-other than equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that and are specifically deemed not to be subject to the right of first offer in this Section 2.4 approved by the written consent or affirmative vote Company’s board of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investorsdirectors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor Rights Holders in any subsequent offering of Shares if (i) at the time of such offering, the Investor Rights Holders is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major InvestorRights Holder; provided, however, that a Major Investor Rights Holder that is a venture capital fund may assign or transfer such rights to its Affiliatesan affiliate of such Rights Holder (including an affiliated venture capital fund, partner, partnership or other entity of which any affiliate of such Rights Holder is a general partner or has investment discretion, or any employee of any of the foregoing) if such transferee agrees to become a party to and be bound by this Agreement.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) the Company’s sale of its Common Stock or other securities pursuant to a Qualified Public Offering firm commitment underwritten public offering pursuant to an effective Registration Statement under the Act (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option, stock purchase or similar plan or a SEC Rule 145 transaction) or (ii) a Liquidation Event, as that term is defined in the Company’s Amended and Restated Certificate of Incorporation (as amended from time to time).
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:.
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty (20) 20 calendar days after receipt of the giving of Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, Notice up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, by would allow such Major Investor bears to the total number of shares of Common Stock maintain such Major Investor’s percentage ownership of the Company then outstanding as of the date of the Notice (assuming full conversion and or exercise of all convertible and or exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects securities) on an as-converted to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)common stock basis.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(bSection 2.3(b) are not elected to be obtained as provided in subsection 2.4(b) hereof2.3(b), the Company may, during the ninety (90) 180 day period following the expiration of the period provided in subsection 2.4(bSection 2.3(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 180 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to (i) the issuance or sale of shares of Shares pursuant to stock splits, subdivisions, dividends and the like, (ii) Common Stock (or options therefor) to purchase Common Stock issuable or issued to employees, directorsofficers, directors or consultants and other service providers for of the primary purpose of soliciting Corporation or retaining their services its subsidiaries directly or pursuant to plans any stock option plan, stock purchase plan, stock bonus plan or agreements similar plan or agreement approved by the Company’s Board of Directors Board, (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (iiiii) the issuance of securities Common Stock upon conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series C-1 Preferred Stock or Series D Preferred Stock, (iv) the issuance of Shares (A) pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock Stock, registered under the ActAct or (B) upon exercise of warrants or rights granted to underwriters in connection with such public offering, (iiiv) the issuance of securities (A) to persons or entities pursuant to the conversion corporate or exercise of convertible strategic partnerships or exercisable securities outstanding as of the date hereoftransactions, (ivB) the issuance of securities in connection with a bona fide business acquisition of or by the Company, Company (whether by merger, merger consolidation, sale of assets, sale or exchange of stock or otherwise), (C) to landlords in connection with real estate lease transactions; or (D) to lenders or lessors in connection with a bona fide loan or lease financing, that in each such case are approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director)Board, (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreementprimarily for purposes other than equity financing, (vi) the issuance of stock, warrants Shares pursuant to the conversion or other exercise of convertible or exercisable securities the original issuance of which was prior to the date hereof or rights to persons or entities with the original issuance of which was excluded from the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote right of a Preferred Directorfirst offer under this Section 2.3(d), or (vii) any issuance in which the issuance provisions of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 2.3 are waived by the written consent or affirmative vote holders of the Major Investors holding greater than fifty percent (50%) at least a majority of the Registrable Securities then held by all the Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Great Basin Scientific, Inc.)
Right of First Offer. Subject to the terms and conditions specified in Section 2.4 and this Section 2.42.5, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.5, the term “Major Investor” Investor includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:.
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty (20) calendar days after receipt of the giving of Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of the Series A Preferred Stock and/or Series B Preferred Stock then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b2.5(b) are not elected to be obtained as provided in subsection 2.4(b2.5(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b2.5(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty ninety (6090) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 paragraph 2.5 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, directors and consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”)services; (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock Stock, registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities securities, (iv) the issuance of stock pursuant to any rights or agreements outstanding as of the date hereofof this Agreement, options and warrants outstanding as of the date of this Agreement and stock issued pursuant to any such rights or agreements granted after the date of this Agreement; provided, that the rights of first refusal established by this Section applied with respect to the initial sale or grant by the Company of such rights or agreements; (ivv) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization of the Company; (vi) any equity securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution; (vii) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors otherwise or (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (viviii) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, relationships provided such issuances are for other than primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorspurposes.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Sources: Investors' Rights Agreement (Design Within Reach Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor (other than BlackRock) shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. BlackRock shall be entitled to apportion the rights of first offer hereby granted it among itself, its partners and affiliates and any other holders of the BlackRock Warrants (or any partners or affiliates of such holders) in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or into, exchangeable or exercisable for any shares of, any class or series of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, ; (ii) the number of such Shares to be offered offered; and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty Within ten (2010) calendar business days after the giving of the Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion or exercise of Preferred Stock the Registrable Securities then held, by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities of the Company beneficially owned by such Major Investor) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all then outstanding convertible and exercisable securities then outstandingof the Company) (such Major Investor’s “Pro Rata Share”); provided, however, that (x) BlackRock may only purchase up to that percentage of its Pro Rata Share that is equal to the highest percentage that any other Major Investor elects to purchase of such Major Investor’s Pro Rata Share and (y) for purposes of this Section 3.4, BlackRock shall be deemed to beneficially own and hold all of the outstanding BlackRock Warrants and all of the outstanding shares of Common Stock originally issued upon exercise of the Blackrock Warrants. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (a “Fully-Fully Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten five (105) business day period commencing after such information is given, each Fully-Fully Exercising Major Investor may elect shall be entitled to purchase up to that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Registrable Securities, then held by such Fully-Fully Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion issued and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such periodheld, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the issuable upon conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held held, by all Major Investors. In addition Fully Exercising Investors who wish to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) purchase some of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsunsubscribed shares.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Oportun Financial Corp)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.5 and applicable securities laws, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.43.5, the term “Major Investor” includes any general partners and affiliates Affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate; provided that each such party and Affiliate agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement, as an investor under each such agreement. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion, exercise and/or exchange of all convertible, exercisable and/or exchangeable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and conversion, exercise and/or exchange of all convertible and convertible, exercisable and/or exchangeable securities then outstanding). The At the expiration of such twenty (20) calendar day period, the Company shall promptly, in writing, inform notify each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) calendar day period commencing after the Company has given such information is givennotice to the Fully-Exercising Investors, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of the Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(bSection 3.5(b) of this Agreement are not elected to be obtained as provided in subsection 2.4(bSection 3.5(b) hereofof this Agreement, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(bSection 3.5(b) hereofof this Agreement, offer the remaining unsubscribed portion of such Shares to any person Person or persons Persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty ninety (6090) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 3.5 shall not be applicable to (i) the issuance or sale of shares any securities that are excluded from the definition of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each “Additional Stock,” as such term is defined in that certain Amended and the Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); Certificate (ii) the issuance and sale of securities Series C Preferred Stock pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, Series C Agreement or (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 3.5 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) a majority of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 3.5 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 3.5 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 3.5 shall terminate and be of no further force or effect upon the consummation of (i) the Initial Offering (other than a Qualified Public Offering registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option, stock purchase or similar plan or a SEC Rule 145 transaction) or (ii) a Liquidation Event, as that term is defined in the Restated Certificate.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Tarsus Pharmaceuticals, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.43.4, the term “Major Investor” includes any general partners and affiliates Affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.
. (b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock that are Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The At the expiration of such twenty (20) calendar day period, the Company shall promptly, in writing, inform notify each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) calendar day period commencing after the Company has given such information is givennotice to the Fully-Exercising Investors, subject, in the case of each of SoftBank and QIA, to the Ownership Cap (as defined below), each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock Registrable Securities held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)desiring to purchase such unsubscribed Shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.5, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.5, the term “Major Investor” Investor includes any general partners partners, managing members and affiliates of a Major Investor, including Affiliated Funds. A Major Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates, including Affiliated Funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (the “RFO Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar Within 30 days after delivery of the giving of RFO Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the RFO Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstandingoutstanding shares of Preferred Stock). Such purchase shall be completed at the same closing as that of any third party purchasers or at an additional closing. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) -day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full issued and held, or issuable upon conversion and exercise of all convertible and or exercisable securities then outstanding) held, by such Fully-Exercising Investor bears to the total number of shares of Common Stock then outstanding (assuming conversion of all outstanding shares of Preferred Stock) and held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)who wish to purchase the unsubscribed Shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.5(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the RFO Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of after the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.5 shall not be applicable to (i) the issuance or sale of shares of Common Stock Exempted Securities (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”Charter); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 2.5 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares securities issuance, if (i) at the time of such offeringsubsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Securities Act, and (ii) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Auspex Pharmaceuticals, Inc.)
Right of First Offer. Subject to the terms and conditions -------------------- specified in this Section 2.4paragraph 2.4 and in paragraph 2.10, the Company hereby grants to each Major Investor (as hereinafter defined) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “a Major Investor” Investor shall mean any Investor or transferee that holds at least 900,000 shares of Registrable Securities. For purposes of this Section 2.4, Investor includes any general partners and affiliates of a Major an Investor. A Major An Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each Except as provided in subparagraph (d), each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:.
(a) The Company shall deliver a notice in accordance with Section 3.5 4.5 (“"Notice”") to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty (20) calendar days after receipt of the giving of Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock Registrable Securities then held, held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “"Fully-Exercising Major Investor”") of any other Major Investor’s 's failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock Registrable Securities then held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock Registrable Securities then held by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than thosethan, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty ninety (6090) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section paragraph 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) granted after the date of this Amended and Restated Investors' Rights Agreement, with the approval of a majority of the members of the Board of Directors not holding management positions with the Company (and the reissuance of any shares issued or subject to outstanding options returned to the Company from any unexercised options or restricted stock repurchased by the Company after such date), to employees, directors, directors and consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to stock option plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock Stock, registered under the Act, at an offering price of at least $3.97 per share (appropriately adjusted for any stock split, dividend, combination or other recapitalization) and resulting in proceeds to the Company of at least $20,000,000 in the aggregate, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company approved by a majority of the Board of Directors of the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights rights, with the approval of a majority of the Board of Directors of the Company, to persons or entities with which the Company is entering or has business relationshipsentered into a strategic relationship, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (viivi) the issuance of stock, warrants, or other securities or rights in connection with and other bank debt financing, commercial lending, equipment financings, capital lease, or similar transactions, with the approval of a majority of the Board of Directors of the Company, (vii) in the event that Intel Corporation and the Company agree on the terms of a technology development relationship, the issuance of a warrant to non-Affiliates that are specifically deemed not Intel Corporation to be purchase up to 146,199 shares of Series C Preferred Stock at $3.42 per share (subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time adjustment of such offeringfixed dollar amounts for any stock splits, stock dividends, combinations, recapitalizations or the Investor is not an “accredited investor,” as that term is then defined like) and the issuance of any Common Stock in Rule 501(aconnection with the conversion of such preferred stock; (viii) the issuance of a warrant to Comdisco Inc. to purchase 6,397 shares of Series D Preferred Stock at $4.69 per share (subject to adjustment of such fixed dollar amounts for any stock splits, stock dividends, combinations, recapitalizations or the Act like) and (ii) the issuance of any Common Stock in connection with the conversion of such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; providedpreferred stock, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (iiix) the issuance of a Liquidation Eventwarrant to Microsoft Corporation to purchase up to 218,120 shares of Series D Preferred Stock at $5.96 (subject to adjustment of such fixed dollar amounts for any stock splits, stock dividends, combinations, recapitalizations or the like) and the issuance of any Common Stock in connection with the conversion of such preferred stock.
Appears in 1 contract
Sources: Investors' Rights Agreement (Ibeam Broadcasting Corp)
Right of First Offer. Subject to the terms and conditions -------------------- specified in this Section 2.4paragraph 2.2, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.2, the term “Major Investor” Investor includes any general partners and affiliates of a Major Investoran Investor and assignees or transferees of an Investor that acquire at least 50,000 shares of Registrable Securities. A Major An Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:.
(a) The Company shall deliver a notice in accordance with Section 3.5 (“"Notice”") to the Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty ten (2010) calendar days after receipt of the giving of Notice, each Major the Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b2.2(b) are not elected to be obtained as provided in subsection 2.4(b2.2(b) hereof, the Company may, during the ninety one hundred twenty (90120) day period following the expiration of the period provided in subsection 2.4(b2.2(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty one hundred twenty (60120) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.2 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, directors and consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”)services; (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock Stock, registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, relationships provided such issuances are for other than primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (viivi) the issuance of securities to non-Affiliates that are specifically deemed not to be subject any dividends permitted under the Company's Amended and Restated Certificate of Incorporation payable to the right of first offer in this Section 2.4 by the written consent or affirmative vote holders of the Major Investors holding greater than fifty percent (50%) Company's Common Stock in shares of Common Stock or to the holders of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right Company's Preferred Stock in shares of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsPreferred Stock.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Sources: Investors' Rights Agreement (Metasolv Software Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor (each a “Participating Investor”) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” Participating Investor includes any general partners and affiliates of a Major an Investor. A Major Participating Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit class of debt or equity securities) the Company’s shares (“Shares”), the Company shall first make an offering of such Shares to each Major Participating Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Participating Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after receipt of the giving of Notice, each Major Participating Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Participating Investor bears to the total number of shares of Common Stock of the Company Shares then outstanding (assuming full conversion of the Preferred Shares and exercise of all outstanding options, warrants or other convertible and exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Participating Investor that elects to purchase all the shares Shares available to it (a “Fully-Exercising Major Investor”) of any other Major Participating Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Participating Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Participating Investors that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held by all Fully-Exercising Major Investors Shares then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Participating Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of 15,311,111 shares of Common Stock (or options therefor) to Shares reserved for employees, directors, consultants and other service providers for subject to increase upon the primary purpose approval of soliciting or retaining their services pursuant to plans or agreements approved the Board (including the member of the Board that is elected by the Company’s Board holders of Directors (which approval shall include the affirmative vote a majority of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”Shares); (ii) the issuance of securities Common Shares issued pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, stock split or similar reorganization; (iii) the issuance Common Shares issued or issuable upon conversion of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, Preferred Shares; (iv) the issuance of securities issued in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), ; (v) the issuance and sale of Series 7 Preferred Stock securities issued or issuable pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are strategic transactions entered into for primarily for non-equity financing purposes (which approval shall include purposed and approved by the affirmative vote of a Preferred Director), Board or (viivi) the issuance of securities issued or issuable pursuant to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 equipment lease financings or bank credit arrangements approved by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major InvestorsBoard. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Participating Investor in and any subsequent offering of Shares if (i) at the time of such offering, the Participating Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Participating Investor; provided, however, that a Major Participating Investor that is a venture capital fund may assign or transfer such rights to its Affiliatesan affiliated venture capital fund and provided further, that the affiliated venture capital fund executes the necessary documents to become party to the same agreements as those previously governing the rights and obligations of the Participating Investor.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) the sale of securities pursuant to a Qualified Public Offering or (ii) a Liquidation Eventbona fide, firmly underwritten public offering of Common Shares registered under the Act.
Appears in 1 contract
Sources: Investors’ Rights Agreement (New Oriental Education & Technology Group Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Series D-1 Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Series D-1 Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by certified mail (“Notice”) to the Series D-1 Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 15 calendar days after delivery of the giving of Notice, each Major the Series D-1 Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Series D-1 Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Series D-1 Investor that elects to purchase purchases all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Series D-1 Investor’s failure to do likewise. During the ten (10) ten-day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that Series D-1 Investors which is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion and exercise of all convertible or exercisable securities then held, by such Fully-Exercising Major Investor bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled referred to obtain pursuant to subsection 2.4(b) in the Notice are not elected to be obtained as provided in subsection Section 2.4(b) hereof, the Company may, during the ninety (90) 30-day period following the expiration of the period provided in subsection Section 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 30 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Series D-1 Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) to the issuance or sale of up to 11,898,500 shares of Common Stock (or options therefor) to employees, directors, directors or consultants and other service providers of the Company pursuant to plans or agreements approved by the Board of Directors for the primary purpose of soliciting or retaining their services pursuant to plans employment or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Directorservices, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance to or after consummation of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock common stock, registered under the ActAct pursuant to a registration statement on Form S-1, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director)Directors, or (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationshipsrelationships approved by the Board of Directors, including, but not limited to, strategic licensing transactions, corporate partnerships or joint ventures or similar strategic agreements, or transactions with banks or other financial institutions or landlords in connection with the extension of credit to the Company (including loans, lines of credit, guarantees or other financing arrangements) or in connection with the lease of equipment, personal property or real property; provided such issuances are for other than primarily for non-equity financing purposes purposes.
(which approval shall include the affirmative vote of a Preferred Director), or (viii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the The right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent terminate upon the closing of the first Company-initiated registered public offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) Common Stock of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsCompany.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Sirenza Microdevices Inc)
Right of First Offer. Subject to the terms and conditions -------------------- specified in this Section 2.42.3, the Company hereby grants to each Major Investor Investor, a right of first offer to purchase its Pro Rata Share (as hereinafter defined for the purpose of this Section 2.3) (in whole or in part) with respect to future sales by the Company of its Future Shares (as hereinafter defined). For purposes of this Notwithstanding Section 2.42.6(b), the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major each Investor shall be entitled to assign or apportion the right of first offer hereby granted it among itself itself, its partners, members and its partners and Affiliates affiliates (including in the case of a venture capital fund other venture capital funds affiliated and/or under common investment management with such fund) in such proportions as it deems appropriate. For purposes of this Section 2.3, an Investor's "Pro Rata Share" of Future Shares shall be a fraction, the numerator of which is the number of shares of Common Stock and Class B Common Stock issuable upon conversion of Preferred Stock then held by such Investor plus the number of shares of Common Stock and Class B Common Stock then held by such Investor that were actually issued to such Investor upon conversion of Preferred Stock and the denominator of which is the total number of shares of the Company's Common Stock then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and including all shares of Common Stock reserved for future issuance pursuant to the Company's 1998 Stock Option Plan and 2002 Stock Plan). Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Future Shares”"), the Company shall first make an offering of such ------------- Future Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“"Notice”") to each of the Investors stating (i) its bona fide intention to offer such Future Shares, (ii) the number of such Future Shares to be offered offered, and (iii) the price and terms a summary of the terms, if any, upon which it proposes to offer such Future Shares.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Each Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to its Pro Rata Share of such Future Shares by notifying the Company in writing within ten (10) calendar days from the date the Notice is given by the Company. The Company shall promptly, in writing, inform each Investor that elects to purchase all the Future Shares available to it (a "Fully-Exercising Investor") ------------------------- of any other Investor's failure to do likewise. During the ten (10) calendar day period commencing after such information is given, each Fully-Exercising Investor may elect to purchase that portion of such the Future Shares for which Investors were entitled to subscribe but that equals were not subscribed for by the Investors that is equal to the proportion that the number of shares of Common Stock issuable upon conversion of the Preferred Stock then held by such Fully-Exercising Investor plus the number of shares of Common Stock then held by such Fully-Exercising Investor that were actually issued to such Investor upon conversion of Preferred Stock bears to the total number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed Future Shares.
(c) If all To the extent that Future Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained by the Investors as provided in subsection 2.4(b(b) hereofabove, the Company may, during the ninety (90) day period calendar days following the expiration of the period provided in subsection 2.4(b(b) hereofabove, offer the remaining unsubscribed portion of such Future Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Future Shares within such period, or if such agreement is not consummated within sixty thirty (6030) calendar days of the execution thereof, the right provided hereunder in this Section 2.3 shall be deemed to be revived and such Future Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to the issuance of (i) the issuance or sale of shares of Common Stock (issuable or options therefor) issued to employees, directors, consultants and other service providers for or directors of the primary purpose of soliciting Company directly or retaining their services pursuant to plans the Company's 1998 Stock Option Plan, 2002 Stock Plan or agreements other employee stock incentive programs or arrangements approved by a majority of the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorDirectors, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or Preferred Stock issuable upon exercise of convertible or exercisable securities warrants outstanding as of the date of hereof, (iii) capital stock or warrants or options to purchase capital stock issued to unaffiliated entities of the Company in connection with bona fide acquisitions, mergers or similar transactions, the terms of which are approved by a majority of the Board of Directors, (iv) shares of Common Stock issued or issuable to banks, equipment lessors or other financial institutions pursuant to a commercial leasing or debt financing transaction approved by a majority of the issuance Board of securities Directors, (v) shares of Common Stock or Class B Common Stock issued or issuable upon conversion of the Shares, (vi) shares of Common Stock issued or issuable in a public offering prior to or in connection with a bona fide business acquisition which all outstanding shares of Preferred Stock will be converted to Common Stock or Class B Common Stock, (vii) shares of Common Stock or Class B Common Stock issued in connection with any stock split, stock dividend, recapitalization, or the like by the Company, whether by merger, consolidation, sale and (viii) shares of assets, sale Common Stock issued pursuant to a transaction involving a strategic partner or exchange non-employee service provider the primary purpose of stock or otherwise, which is other than raising equity capital and which is approved by a majority of the Company’s Board of Directors Directors.
(which approval shall include the vote of a Preferred Director), (ve) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the The right of first offer in this Section 2.4 2.3 with respect to holders of Series B Preferred Stock may be waived by the written consent or affirmative vote or consent of the Major Investors holding greater than fifty percent (50%) holders of a majority of the Registrable Securities then held by all Major InvestorsSeries B Preferred Stock. In addition to the foregoing, the The right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering holders of Shares if (i) at Series A Preferred Stock may be waived by the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) affirmative vote or consent of the Act and (ii) such offering holders of Shares is otherwise being offered only a majority of the Series A Preferred Stock. The right of first offer with respect to accredited investorsholders of shares of Series C Non-Voting Preferred Stock may be waived by the affirmative vote or consent of the holders of a majority of the Series C Non-Voting Preferred Stock.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.44.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company hereby grants shall first make an offering of such New Securities to each Major Investor a right of first offer in accordance with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes following provisions of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. 4.1.
(a) A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners partners, members and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice notice, in accordance with the provisions of Section 3.5 6.5 hereof (the “Offer Notice”) ), to each of the Major Investors stating (i) its bona fide intention to offer such SharesNew Securities, (ii) the number of such Shares New Securities to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such SharesNew Securities.
(b) By written notification received by the Company Company, within twenty (20) calendar days after mailing of the giving of Offer Notice, each of the Major Investor Investors may elect to purchasepurchase or obtain, at the price and on the terms specified in the Offer Notice, up to that portion of such Shares that New Securities which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock (and any other securities convertible into, or otherwise exercisable or exchangeable for, shares of Common Stock) then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all outstanding convertible and or exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain up to that portion of the Shares New Securities for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, that Investors which is equal to the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held or Preferred Stock that is issuable upon exercise of warrants then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held or Preferred Stock that is issuable upon exercise of warrants then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)who wish to purchase such unsubscribed shares.
(c) If all Shares that Major Investors are entitled New Securities referred to obtain pursuant to subsection 2.4(b) in the Offer Notice are not elected to be purchased or obtained as provided in subsection 2.4(bSection 4.1(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(bSection 4.1(b) hereof, offer the remaining unsubscribed portion of such Shares New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than thosethan, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the Shares New Securities within such period, or if such agreement is not consummated within sixty thirty (6030) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares New Securities shall not be offered unless first reoffered to the Major Investors in accordance herewithwith this Section 4.1.
(d) The right of first offer in this Section 2.4 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the issuance or sale of Company’s Restated Certificate), (ii) shares of Common Stock (or options therefor) to employees, directors, consultants issued in the IPO and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance shares of securities Series E Preferred Stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor (as hereinafter defined) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, a Major Investor shall mean (i) any Investor who holds at least 10% of the term “Major Investor” combined investment such Investor makes in the Company pursuant to the Series A Agreement, the Series B Agreement and the Series C Agreement, and (ii) any person who acquires at least 10% of the Preferred Stock issued pursuant to such agreements. For purposes of this Section 2.4, Investor includes any general partners and affiliates of a Major an Investor. A Major An Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate.
13. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by certified mail or courier service, such as Federal Express, (“"Notice”") to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty (20) 20 calendar days after the giving of the Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares which equals the proportion that equals the number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, by such Major Investor bears to the total number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, by all the Major Investors. The Company shall promptly, in writing, inform each Major Investor which purchases all the shares available to it ("Fully-Exercising Investor") of any other Major Investor's failure to do likewise. During the ten-day period commencing after such information is given, each Fully-Exercising Investor shall be entitled to obtain that portion of the Shares not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, by such Fully-Exercising Investor bears to the total number of shares of Common Stock issued and held, or issuable upon conversion of the Company Preferred Stock then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptlyheld, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled referred to obtain pursuant to subsection 2.4(b) in the Notice are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) 60-day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 30 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section paragraph 2.4 shall not be applicable to (i) to the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers employees for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Directoremployment, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) to the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the ActIPO, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities currently outstanding as of the date hereofor issued in accordance with this Section 2.4, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), otherwise or (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, relationships provided such issuances are for other than primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates and provided that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of any such offeringissuance, the Investor is not an “accredited investor,” as that term is then defined aggregate of such issuance and similar issuances in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.preceding twelve month period do not
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defineddefined below). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major An Investor shall be entitled who chooses to apportion exercise the right of first offer hereby granted it among may designate as purchasers under such right itself and or its partners and Affiliates or affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by certified mail (“"Notice”") to the Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 15 calendar days after delivery of the giving of Notice, each Major the Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of Preferred Stock all convertible or exercisable securities then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding held by the Investors (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (each, a “"Fully-Exercising Major Investor”") of any other Major Investor’s 's failure to do likewise. During the ten (10) day 10)-day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full issued and held, or issuable upon conversion and exercise of all convertible and or exercisable securities then outstanding) held, by such Fully-Exercising Investor bears to the total number of shares of Common Stock then held by all the Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and or exercisable securities then outstandingsecurities). The sale of Shares shall take place at such time agreed to by the Investors subscribing for a majority of the Shares to be sold hereunder or, if applicable, at the same closing as that of any third party purchasers.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the The Company may, during the ninety (90) 45-day period following the expiration of the period provided in subsection 2.4(b2.3(b) hereof, offer the remaining unsubscribed portion of such the Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than thosethan, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 paragraph 2.3 shall not be applicable to (i) to the issuance or sale of shares of Common Stock (or options therefor) to employees, consultants and directors, consultants and other service providers pursuant to plans or agreements approved by the Board of Directors for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Directorservices, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance to or after consummation of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the ActQualified IPO, (iii) to the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) to the issuance of securities in connection with a bona fide business the acquisition of all or substantially all of the properties, assets or stock of another entity (including acquisitions by way of merger or consolidation), the Company, whether by merger, consolidation, sale terms of assets, sale or exchange of stock or otherwise, which are approved by the Company’s Board of Directors (which approval shall include of the vote of a Preferred Director)Company, (v) to the issuance and of securities to financial institutions or lessors in connection with commercial credit arrangements, equipment financings, or similar transactions approved by the Board of Directors of the Company, (vi) to the issuance or sale of the Series 7 B Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) to the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote that, with unanimous approval of the Major Investors holding greater than fifty percent (50%) Board of Directors of the Registrable Securities then held by all Major Investors. In addition to the foregoingCompany, the right of first offer in this Section 2.4 shall are not be applicable with respect offered to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) existing stockholder of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsCompany.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section paragraph 2.4, the Company hereby grants to each Major Investor (as hereinafter defined) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, a Major Investor shall mean (i) any Investor who holds at least 50% of such Investor's originally acquired shares of Series A Preferred Stock issued pursuant to the term “Major Investor” Series A Agreement and (ii) any person who acquires at least 10% of the Series A Preferred Stock (or the common stock issued upon conversion thereof) issued pursuant to the Series A Agreement. For purposes of this Section 2.4, Investor includes any general or limited partners and affiliates of a Major an Investor. A Major An Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by certified mail (“"Notice”") to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) Within 20 calendar days after receipt of the giving of Notice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock common stock issued and held, or issuable upon conversion of the Series A Preferred Stock then held, by such Major Investor bears to the total number of shares of Common Stock common stock of the Company then outstanding (assuming full conversion and exercise of all convertible and or exercisable securities then outstanding)securities) as of the date of the Notice. The Company shall promptly, in writing, inform each Major Investor that elects to purchase which purchases all the shares available to it (a “"Fully-Exercising Major Investor”") of any other Major Investor’s 's failure to do likewise. During the ten (10) ten-day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect shall be entitled to purchase obtain that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, that Investors which is equal to the proportion that the number of shares of Common common stock issued and held, or issuable upon conversion of Series A Preferred Stock held then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common common stock issued and held, or issuable upon conversion of the Series A Preferred Stock held then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled referred to obtain pursuant to subsection 2.4(b) in the Notice are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) 60-day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section paragraph 2.4 shall not be applicable to (i) to the issuance or sale of shares of Common Stock common stock (or options therefor) to employees, directors, consultants and other service providers for or directors of the primary purpose of soliciting Company directly or retaining their services pursuant to plans a stock option plan or agreements restricted stock plan approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director Company (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as with at least three (3) of the date hereofBoard representatives of the Major Investors voting in favor), collectively, the “Preferred Directors”); (ii) the issuance to or after consummation of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock common stock, registered under the ActAct pursuant to a registration statement on Form S-1, at an offering price of at least $20,000,000 in the aggregate, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), otherwise or (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, relationships provided such issuances are for other than primarily for non-equity financing purposes (which approval shall include with at least three (3) of the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote Board representatives of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer voting in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsfavor).
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Sources: Series a Preferred Stock Purchase Agreement (Rhythms Net Connections Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.3, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company or any subsidiary of the Company of its Shares (as hereinafter defined). For purposes of this Section 2.42.3, the term “Major Investor” includes Investor shall include any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate, subject to applicable securities laws. Each time the Company or any subsidiary of the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its respective capital stock (including, without limitation, any unit of debt or equity securities) (the “Shares”), the Company shall first make make, or shall cause such subsidiary to make, as applicable, an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 3.6 (the “Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty (20) calendar days after receipt of the giving of Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all outstanding convertible and exercisable securities then outstandingsecurities). The Company shall promptly, in writing, inform each Major Investor that elects to purchase which purchases all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) calendar day period commencing after receipt of such information is giveninformation, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that which is equal to the proportion that the number of shares of Common Stock held issued and held, or issuable upon conversion of Preferred Stock then held, by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of Preferred Stock then held, by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(bSection 2.3(b) are not elected to be obtained as provided in subsection 2.4(bSection 2.3(b) hereof, the Company may, during the ninety thirty (9030) day period following the expiration of the period provided in subsection 2.4(bSection 2.3(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 2.3 shall not be applicable to (i) the issuance or sale of shares of Common Series F Preferred Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities sold pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (viii) Common Stock excluded from the issuance definition of stock, warrants or other securities or rights “Additional Stock” pursuant to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%B.4(d)(ii) of the Registrable Securities then Articles, provided, however, the securities excluded from the definition of “Additional Stock” in the Articles shall also apply to the Company’s subsidiaries for purposes of this Agreement and (iii) equity securities of a direct or indirect wholly-owned subsidiary of the Company that are issued to the Company (provided that whether a subsidiary is wholly owned by the Company will be determined without taking into account de minimis amounts of equity securities held by all Major Investorsthird parties in order to satisfy any applicable resident-shareholder, director-shareholder or similar legal requirements). In addition to the foregoing, the right of first offer in this Section 2.4 2.3 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares securities issuance, if (i) at the time of such offeringsubsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of under the Act Act, and (ii) such offering of Shares subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The rights provided right of first offer set forth in this Section 2.4 2.3 may not be assigned or transferred to a direct competitor of the Company, as reasonably determined by any Major Investor; providedthe Company, however, provided that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering such right is assignable by each Major Investor to any affiliate, including any wholly-owned subsidiary or parent of, or to any corporation or entity that is, within the meaning of the Act, controlling, controlled by or under common control with, any such Major Investor, and (ii) such right is assignable to a Liquidation Eventtransferee or assignee who holds after such transfer at least ten percent (10%) of the shares of Registrable Securities (subject to appropriate adjustment for any Recapitalization).
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.43.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor (other than BlackRock) shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. BlackRock shall be entitled to apportion the rights of first offer hereby granted it among itself, its partners and affiliates and any other holders of the BlackRock Warrants (or any partners or affiliates of such holders) in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or into, exchangeable or exercisable for any shares of, any class or series of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, ; (ii) the number of such Shares to be offered offered; and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty Within ten (2010) calendar business days after the giving of the Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion or exercise of Preferred Stock the Registrable Securities then held, by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities of the Company beneficially owned by such Major Investor) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all then outstanding convertible and exercisable securities then outstandingof the Company) (such Major Investor’s “Pro Rata Share”); provided, however, that (x) BlackRock may only purchase up to that percentage of its Pro Rata Share that is equal to the highest percentage that any other Major Investor elects to purchase of such Major Investor’s Pro Rata Share and (y) for purposes of this Section 3.4, BlackRock shall be deemed to beneficially own and hold all of the outstanding BlackRock Warrants and all of the outstanding shares of Common Stock originally issued upon exercise of the Blackrock Warrants. The Company shall promptly, in writing, inform each Major Investor that elects to purchase purchases all the shares available to it (a “Fully-Fully Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten five (105) business day period commencing after such information is given, each Fully-Fully Exercising Major Investor may elect shall be entitled to purchase up to that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of Registrable Securities, then held by such Fully-Fully Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock held issued and held, or issuable upon conversion of the Registrable Securities then held, by all Fully-Fully Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b3.4(b) are not elected to be obtained purchased as provided in subsection 2.4(b3.4(b) hereofbelow, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b3.4(b) hereofbelow, offer the remaining unsubscribed portion of such Shares to the following individuals in the following order: (i) to the Common Holders; (ii) the Company Management; and (iii) to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for consummate the sale of the Shares within such period, or if such agreement is not consummated within sixty forty-five (6045) days of the execution thereof, the right of first refusal provided hereunder to the Major Investors shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 3.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (issued or options therefor) to employees, directors, consultants and other service providers for issuable upon the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote conversion of the Series 4 Director, Series 5 Director, Series 6 Director Preferred Stock or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between a dividend or distribution on the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”)Stock; (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of capital stock issued or issuable upon exercise of (x) any evidences of indebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Common Stock registered under the Act(“Convertible Securities”), or (iiiy) the issuance of securities pursuant options, warrants or other rights to the conversion subscribe for, purchase or exercise of convertible otherwise acquire Common Stock or exercisable securities Convertible Securities (“Options”), that are issued and outstanding as of the date hereof; (iii) shares of capital stock issued pursuant to the Company’s bona fide acquisition of another corporation or entity by way of merger, purchase of all or substantially all of the assets of the corporation, stock for stock exchange or other reorganization or recapitalization approved by the Board and by the holders of a majority of the then-outstanding Preferred Stock, voting together as a class on an as-converted to common stock basis (the “Requisite Holders”); (iv) shares of Common Stock, and/or Options or Convertible Securities and the issuance of securities in connection with a bona fide business acquisition of Common Stock issued pursuant to such Options or by Convertible Securities after the Companydate hereof to employees, whether by mergerofficers or directors of, consolidationor consultants or advisors to, sale of assets, sale the Company or exchange of any subsidiary pursuant to stock purchase or otherwise, stock option plans or other arrangements that are approved by the Required Board Percentage (as defined in the Company’s Board Certificate of Directors (which approval shall include the vote of a Preferred DirectorIncorporation), ; (v) shares of Common Stock issued upon the issuance and sale closing of Series 7 Preferred Stock a firm commitment underwritten public offering of the Company’s securities pursuant to the Series 7 Purchase AgreementSecurities Act, in which all the shares are converted to Common Stock, pursuant to a public offering; (vi) the issuance shares of Common Stock issued or issuable by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock or on securities convertible thereto; (vii) shares of capital stock, warrants or other securities or rights issued to persons or entities with which the Company has entered into or intends to enter into business relationships, provided such issuances are approved by the Required Board Percentage and are for other than primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), purposes; or (viiviii) the issuance BlackRock Warrants and the shares of securities to non-Affiliates that are specifically deemed not to be subject to the Common Stock or Preferred Stock issuable upon exercise thereof or upon conversion of any Preferred Stock issued upon exercise thereof.
(e) The right of first offer set forth in this Section 2.4 3.4 may not be assigned or transferred, except that (i) such right is assignable by each Major Investor to any wholly owned subsidiary or parent of, or to any corporation or entity that is, within the written consent meaning of the Act, controlling, controlled by or affirmative vote under common control with, any such Major Investor, and (ii) such right is assignable between and among any of the Major Investors or between and among any such Investor and any affiliated partnerships, partners, retired or former partners, members, former members, stockholders, venture capital funds or other entities of such Investor.
(f) The right of first offer set forth in this Section 3.4 may be amended or waived, in whole or in part, and either prospectively or retrospectively, only upon the consent of (i) the Company, and (ii) Major Investors holding greater than fifty percent (50%) a majority of the all Registrable Securities then held by all the Major Investors. In addition Investors (on an as converted to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorscommon stock basis).
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Oportun Financial Corp)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” Investor includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:.
(a) The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty (20) calendar days after receipt of the giving of Notice, each Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock Registrable Securities issued and held, or issuable upon conversion of Preferred Stock then held, held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase up to that portion of the Shares for which Major Investors were entitled to subscribe, subscribe but which were not subscribed for by the Major Investors, Investors that is equal to the proportion that the number of shares of Common Stock Registrable Securities issued and held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock Registrable Securities issued and held by all Fully-Exercising Major Investors (assuming full conversion and exercise who wish to purchase some of all convertible and exercisable securities then outstanding)the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty ninety (6090) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and or other service providers for the primary purpose of soliciting or retaining their services directly or pursuant to plans a stock option plan or agreements restricted stock plan approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock Stock, registered under the Act, resulting in proceeds to the Company of at least $30,000,000 in the aggregate (before deducting underwriting discounts, commission or expenses), (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, provided that such issuance is approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director)Directors, (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided that such issuances are issuance is for other than primarily for non-equity financing purposes and provided that such issuance is approved by the Board of Directors (which approval shall include including the affirmative vote directors appointed by the holders of a Series B Preferred Director)Stock and Series C Preferred Stock) (vi) the issuance of stock, warrants or other securities or rights to financial institutions or lessors in connection with credit or equipment financing arrangements, provided that such issuance is approved by the Board of Directors (including the directors appointed by the holders of Series B Preferred Stock and Series C Preferred Stock) or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject shares of Series C Preferred Stock pursuant to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major InvestorsSeries C Agreement. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in and any subsequent offering of Shares if (x) (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that the term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorsinvestors or (y) such Major Investor is, in the good faith judgment of the Board of Directors, deemed to be a competitor of the Company.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any a Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliatesan affiliated venture capital fund.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.5, the Company hereby grants to each Major Investor other than such Investors set forth on Schedule B attached hereto (the "Eligible Investor") a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defineddefined below). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major An Eligible Investor shall be entitled to apportion the right of first offer hereby granted it under this Agreement among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“the "Shares”"), the Company shall first make an offering of such Shares to each Major Eligible Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 below (“the "Notice”") to the Eligible Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) 20 calendar days after giving the giving of Notice, each Major Eligible Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares that which equals the proportion that the number of shares of Common Stock issued and held, or including all shares of Common Stock issuable upon conversion of the Preferred Stock then held, by such Eligible Investor bears to the total number of shares of Common Stock of the Company then outstanding (outstanding, assuming full conversion and exercise of all outstanding Preferred Stock and other convertible and or exercisable securities then outstandingof the Company (the "Pro Rata Portion"). The Company shall promptly, in writing, inform each Major Eligible Investor that elects to purchase which purchases all the shares available to it (a “"Fully-Exercising Major Eligible Investor”") of any other Major Eligible Investor’s 's failure to do likewise. During likewise (including as a result of no longer having the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect right to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of such shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(bSection 2.6) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 Director, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the Act, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event."
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified -------------------- in this Section 2.42.7, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares Securities (as hereinafter defined). For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer subsequent to the offering under the Series E Agreement any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“Shares”"Securities"), the Company shall first make an offering of such Shares Securities to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 3.5 by certified mail (“"Notice”") to the Investors each Investor stating (i) its bona fide intention to offer such SharesSecurities, (ii) the number of such Shares Securities to be offered and offered, (iii) the price and terms upon price, if any, for which it proposes to offer such SharesSecurities, and (iv) the terms of such offer.
(b) By written notification received by the Company within twenty Within fifteen (2015) calendar days after receipt of the giving of Notice, each Major the Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, up to an amount of such Securities equal to that portion of such Shares that Securities which equals the proportion that the number of shares of Common Stock then issued and held, or issuable to the Investor upon conversion of the shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock then held, and Series E Preferred Stock held by such the Investor bears to the total number sum of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to issued plus the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full issuable upon conversion and exercise of all convertible and exercisable securities of the Company then outstanding). For purposes of this Section 2.7, the term "Investor" includes any general partners or affiliates of an Investor. An Investor shall be entitled to apportion the right of first offer hereby granted among itself and its partners and affiliates in such proportions as it deems appropriate.
(c) If all Shares that Major Securities which the Investors are entitled to obtain purchase pursuant to subsection 2.4(b) this Section 2.7 are not elected to be obtained as provided in subsection 2.4(b2.7(b) hereof, the Company may, during the ninety thirty (9030) day period following the expiration of the period provided in subsection 2.4(b2.7(b) hereof, offer the remaining such unsubscribed portion of such Shares Securities to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree than thosethan, those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares Securities within such period, or if such agreement is not consummated within sixty thirty (6030) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewithrevived.
(d) The right of first offer in this Section 2.4 2.7 shall not be applicable to (i) to the issuance or sale of up to 6,000,000 shares of Common Stock capital stock (or options therefor) after the date hereof to employees, directorsofficers, directors or consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans services, provided that any such issuance or agreements sale is approved by the Company’s 's Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorDirectors, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) to the issuance or sale of the Company's securities pursuant to leasing entities or financial institutions in connection with commercial leasing or borrowing transactions provided that any such issuance or sale is approved by the Company's Board of Directors, (iii) to or after consummation of a bona fide, firmly underwritten firm commitment public offering of shares of Common Stock Stock, registered under the Securities Act, at a price per share not less than $9.50 (iiisubject to appropriate adjustment for stock splits, stock dividends, combinations and recapitalizations and the like) the issuance of securities pursuant which results in aggregate proceeds to the conversion or exercise Company of at least $20,000,000, (iv) conversions of convertible securities or exercisable securities outstanding (v) any issuances of any of the shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock authorized as of the date hereof, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase this Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.42.4 and Section 3(a), the Company hereby grants to each Major Investor (as hereinafter defined) a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). A Series A Investor, as well as any transferee of a Series A Investor, shall be a Major Investor provided that such Person holds at least 500,000 shares of Registrable Securities (as adjusted for stock splits, stock dividends, combinations and other recapitalizations). The Series B Investor, as well as any transferee of the Series B Investor, shall be a Major Investor provided that such Person holds at least 400,000 shares of Registrable Securities (as adjusted for stock splits, stock dividends, combinations and other recapitalizations). For purposes of this Section 2.4, the term “Major Investor” Investor includes any general partners and affiliates Affiliates of a Major InvestorHolder. A Major Investor Each Holder shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company first shall first make an offering of offer such Shares to each Major Investor in accordance with the following provisions:.
(a) The Company shall deliver a notice in accordance with Section 3.5 (“the "First Offer Notice”") to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company Company, within twenty (20) calendar days after receipt of the giving of Noticenotice, each the Major Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the First Offer Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of the Series A or B Preferred Stock then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstandingsecurities).
(c) If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than thatthan, and upon terms no more favorable to the offeree offerer than those, those specified in the First Offer Notice. If the Company does not enter into an agreement for the sale of the Shares within such ninety (90) day period, or if such agreement is not consummated within sixty ninety (6090) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section paragraph 2.4 shall not be applicable to (i) the issuance or sale of up to 2,849,868 shares of Common Stock (or pursuant to options thereforgranted) to employees, directors, directors and consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements any greater number unanimously approved by the Company’s Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorBoard, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the 14 15 issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the ActQualified Public Offering, (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as securities, including but not limited to the exercise of the date hereofAOL Warrant and the QVC Warrant, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), otherwise or (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, relationships provided such issuances are for other than primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates and provided that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of any such offeringissuance, the Investor is aggregate of such issuance and similar issuances in the preceding twelve month period do not an “accredited investor,” as that term is then defined in Rule 501(a) exceed 1% of the Act then outstanding Common Stock of the Company (assuming full conversion and (ii) such offering exercise of Shares is otherwise being offered only to accredited investorsall convertible and exercisable securities).
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 2.41.04 and the provisions of Section 1.05 below, the Company hereby grants to each Major the Investor so long as the investor holds shares of Series D Preferred Stock and this agreement has not been terminated in accordance with the terms hereof, a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 2.41.04, the term “Major Investor” Investor includes any general partners and affiliates of a Major the Investor. A Major The Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock in a private sale (including, without limitation, any unit of debt or equity securities) (“"Shares”"), the Company shall first make an offering of such Shares to each Major the Investor in accordance with the following provisions:
(a) The Company shall deliver a notice written in accordance with Section 3.5 herewith (“"Notice”") to the Investors Investor stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered offered, and (iii) the price and terms terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty five (205) calendar days after receipt of the giving of Notice, each Major the Investor may elect to purchasepurchase or obtain, at the price and on the terms specified in the Notice, all of such Shares or may request (without guarantee by the Company) to purchase up to that portion number of such the Shares that which equals the proportion that the number of shares of Common Stock of the Company ("Common Stock") issued and held, or issuable upon conversion of the Series D Preferred Stock then held, by such the Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)securities) as of the date of the Notice. The Company shall promptly, in writing, inform each Major If the Investor that elects to purchase all Shares, the shares available Company shall promptly use its best efforts to it (a “Fully-Exercising Major Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after bring about such information is given, each Fully-Exercising Major Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock held by such Fully-Exercising Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the number of shares of Common Stock held by all Fully-Exercising Major Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding)sale.
(c) If the Investor does not elect to purchase all Shares that Major Investors are entitled referred to obtain pursuant to subsection 2.4(b) are not elected to be obtained in the Notice as provided in subsection 2.4(b1.04(b) hereof, the Company may, during the ninety sixty (90) day 60)-day period following the expiration of the period provided in subsection 2.4(b) hereoffollowing, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that95% of the purchase price, and upon terms no more favorable to the offeree than those, those specified in the Notice. The Company shall use reasonable efforts to arrange such a sale allowing the Investor to purchase its pro rata portion of the Shares (as described above). If the Company does not enter into an agreement for consummate such sale within the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof60)-day period, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors Investor in accordance herewith.
(d) The right of first offer in this Section 2.4 1.04 shall not be applicable to (i) to the issuance or sale of shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose or directors of soliciting or retaining their services this Company pursuant to plans or agreements the plan as currently approved by the Company’s 's Board of Directors (which approval shall include the affirmative vote of the Series 4 DirectorDirectors, Series 5 Director, Series 6 Director or Series 7 Director (each as defined in that certain Amended and Restated Voting Agreement, by and between the Company and certain stockholders, dated as of the date hereof, collectively, the “Preferred Directors”); (ii) the issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of Common Stock registered under the ActCompany's equity securities, (iii) to the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofsecurities, (iv) to the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, otherwise that is approved by the Company’s Board of Directors (which approval shall include the vote of a Preferred Director), or (v) the issuance and sale of Series 7 Preferred Stock pursuant to the Series 7 Purchase Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has or is establishing business relationships, relationships that is approved by the Board of Directors provided such issuances are for other than primarily for non-equity financing purposes (which approval shall include the affirmative vote of a Preferred Director), or (vii) the issuance of securities to non-Affiliates that are specifically deemed not to be subject to the right of first offer in this Section 2.4 by the written consent or affirmative vote of the Major Investors holding greater than fifty percent (50%) of the Registrable Securities then held by all Major Investors. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Investor in any subsequent offering of Shares if (i) at the time of such offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investorspurposes.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to its Affiliates.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) a Qualified Public Offering or (ii) a Liquidation Event.
Appears in 1 contract
Sources: Investor's Rights Agreement (Applied Voice Recognition Inc /De/)