Common use of Anti-Dilutive Rights Clause in Contracts

Anti-Dilutive Rights. (a) Except as provided in Section 4.05(c) below, the Company shall not issue, sell or transfer to any Person any Common Stock or securities convertible into, or exercisable for, Common Stock unless the Stockholders, Xx. Xxxxx and any Permitted Transferees are offered in writing the right to purchase, at the same price and on the same terms proposed to be issued and sold, an amount of such Common Stock or other securities (the "Maintenance Securities") as is necessary for each of the Stockholders, Xx. Xxxxx and any Permitted Transferees to maintain, individually, the same level of its respective percentage Beneficial Ownership of Common Stock (on a Fully Diluted Basis) as it owned immediately prior to such issuance ("Anti-Dilutive Rights"). In the case of a public offering, the Company shall, as part of its offer, provide a copy of any preliminary prospectus containing either the indicative price range of the offered securities or trading information relating to the offered securities, as the case may be, and other information concerning the offering reasonably requested by the Stockholders, Xx. Xxxxx or any Permitted Transferee. The Stockholders, Xx. Xxxxx and any Permitted Transferee shall have the right, during the period specified in Section 4.05(b), to accept the offer for any or all of the Maintenance Securities offered to each of them on their own behalf or on behalf of any Affiliate (and, in the case of Oak Hill, on behalf of Oak Hill Securities Fund, L.P.) not otherwise accepting such offer to acquire Maintenance Securities under this Section 4.05. (b) If any Stockholder, Xx. Xxxxx or any Permitted Transferee does not deliver to the Company written notice of acceptance of any offer made pursuant to Section 4.05(a) with respect to a public offering within five Business Days after receipt by such Stockholder, Xx. Xxxxx, or any Permitted Transferee, as the case may be, of a preliminary prospectus (filed with the SEC as part of a registration statement) containing the pricing information indicated in Section 4.05(a) above, or, with respect to any transaction other than a public offering, within 15 Business Days after receipt of such offer by such Stockholder, Xx. Xxxxx, or any Permitted Transferee, as the case may be, such Stockholder, Xx. Xxxxx or Permitted Transferee shall be deemed to have waived its or his, as the case may be, right to purchase all or any part of its Maintenance Securities as set forth in such offer but such Stockholder, Xx. Xxxxx or any such Permitted Transferee shall retain its or his, as the case may be, rights under this Section 4.05 with respect to future offers. (c) The Anti-Dilutive Rights set forth above shall not apply to (i) the grant or exercise of options to purchase Common Stock or the issuance of shares of Common Stock to employees or Directors of the Company or any of its Subsidiaries or otherwise pursuant to an Employee Plan or similar plan whether in existence on the date hereof or otherwise duly adopted by the Board hereafter (whether or not such options were issued prior to the date hereof, or are hereafter issued), (ii) the issuance of warrant shares, or of shares of Common Stock issuable upon exercise of any option, warrant, convertible security or other rights to purchase or subscribe for Common Stock which, in each case, had been issued prior to the date hereof or in compliance with Section 4.05(a) or Section 4.05(c)(i), (iii) securities issued pursuant to any stock split, stock dividend or other similar stock recapitalization or (iv) securities issued by the Company for any consideration other than cash as may be approved by the Board. (d) A closing for the purchase of such Maintenance Securities pursuant to this Section 4.05(d) shall occur on the later of (i) the date on which such public or private issuance occurs and (ii) such date as may be mutually agreed to by the Company, Xx. Xxxxx, any Xxxxx Permitted Transferee and Oak Hill on behalf of any Stockholder and any Stockholder Permitted Transferee, as the case may be, and shall take place at the offices of the Company or at such other reasonable location as the Company may otherwise notify any Stockholder, Xx. Xxxxx and/or any Permitted Transferee, as the case may be, at the time specified by the Company in such notice provided to any Stockholder, Xx. Xxxxx or any Permitted Transferee, as the case may be, at least five days prior to such closing date. In connection with such closing, the Company, Xx. Xxxxx, any Stockholder or any Permitted Transferee, as the case may be, shall provide such closing certificates and other closing deliveries provided in the transaction giving rise to the rights specified in Section 4.05.