Contractual Preemptive Rights. Subject to (i) the terms and conditions specified in this Section 7.1 and (ii) subject to Section 7.2 below regarding certain specific financing transactions, the Company hereby grants to the Purchasers a right of first offer with respect to future sales by the Company of New Securities. Each 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. Each time the Company proposes to offer any New Securities, the Company shall first make an offering of such New Securities to Purchasers in accordance with the following provisions: (a) The Company shall deliver a notice in accordance with Section 9.6 (“New Security Notice”) to the Purchasers stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered and (iii) the price and terms upon which it proposes to offer such New Securities. (b) By written notification received by the Company within twenty (20) calendar days after the giving of New Security Notice, each Purchaser may elect to purchase, at the price and on the terms specified in the New Security Notice, up to that portion of such New Securities that equals the proportion that the number of shares of Common Stock issued and held by such Purchaser (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 and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Purchaser that elects to purchase all the shares available to it (a “Fully Exercising Purchaser”) of any other Purchaser’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully Exercising Purchaser may elect to purchase that portion of the New Securities for which Purchasers were entitled to subscribe, but which were not subscribed for by the Purchasers, that is equal to the proportion that the number of shares of Common Stock issued and held by such Fully Exercising Purchaser (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 and exercise of all convertible and exercisable securities then outstanding). (c) If all New Securities that Purchasers are entitled to obtain pursuant to Section 7.1(b) are not elected to be obtained as provided in Section 7.1(b) hereof, the Company may, during the thirty (30) day period following the expiration of the period provided in Section 7.1(b) hereof, offer the remaining unsubscribed portion of such New Securities 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 New Security Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within fifteen (15) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Purchasers in accordance herewith. (d) The right of first offer in this Section 7.1 shall not be applicable to (i) the issuance or sale of up to 1,000,000 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 the Company’s 2007 Omnibus Securities and Incentive Plan, (ii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, and (iii) the issuance of Series A Preferred Stock pursuant to this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Argyle Security, Inc.)
Contractual Preemptive Rights. Subject to (i) the terms and conditions specified in this Section 7.1 and (ii) subject to Section 7.2 below regarding certain specific financing transactions, the Company hereby grants to the Purchasers a right of first offer with respect to future sales by the Company of New Securities. Each 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. Each time the Company proposes to offer any New Securities, the Company shall first make an offering of such New Securities to Purchasers in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 9.6 (“New Security Notice”) to the Purchasers stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered and (iii) the price and terms upon which it proposes to offer such New Securities.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of New Security Notice, each Purchaser may elect to purchase, at the price and on the terms specified in the New Security Notice, up to that portion of such New Securities that equals the proportion that the number of shares of Common Stock issued and held by such Purchaser (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 and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Purchaser that elects to purchase all the shares available to it (a “Fully Exercising Purchaser”) of any other Purchaser’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully Exercising Purchaser may elect to purchase that portion of the New Securities for which Purchasers were entitled to subscribe, but which were not subscribed for by the Purchasers, that is equal to the proportion that the number of shares of Common Stock issued and held by such Fully Exercising Purchaser (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 and exercise of all convertible and exercisable securities then outstanding).
(c) If all New Securities that Purchasers are entitled to obtain pursuant to Section 7.1(b) are not elected to be obtained as provided in Section 7.1(b) hereof, the Company may, during the thirty (30) day period following the expiration of the period provided in Section 7.1(b) hereof, offer the remaining unsubscribed portion of such New Securities 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 New Security Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within fifteen (15) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Purchasers in accordance herewith.
(d) The right of first offer in this Section 7.1 shall not be applicable to (i) the issuance or sale of (A) options to purchase up to 1,000,000 300,000 shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers for providers, at an exercise price per share not less than the primary purpose greater of soliciting (x) Series B Conversion Price (as defined in the Certificate of Designation) or retaining their services (y) the Market Price (as defined in the Certificate of Designation), in each case, as in effect immediately prior to such issuance, and (B) up to 150,000 shares of restricted Common Stock, in each case under clauses (A) and (B), pursuant to the Company’s 2007 Omnibus Securities and Incentive PlanPlan and for the primary purpose of soliciting or compensation for their past or future services, (ii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereofhereof (including the Series A Preferred Stock), (iii) issuance of shares of Common Stock pursuant to the redemption Notes as described and in accordance with Section 7.5 and (iiiiv) the issuance of Series A B Preferred Stock pursuant to this AgreementAgreement (collectively, the “Excluded Issuances”).
Appears in 1 contract
Samples: Securities Purchase Agreement (Argyle Security, Inc.)
Contractual Preemptive Rights. Subject If prior to (i) the terms and conditions specified in this Section 7.1 and (ii) subject to Section 7.2 below regarding certain specific financing transactionsa Qualified Public Offering, the Company hereby grants to the Purchasers a right shall issue any Equity Securities, each holder of first offer with respect to future sales by the Company of New Securities. Each Purchaser Underlying Common Stock shall be entitled to apportion purchase 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 New Securities, the Company shall first make an offering portion of such New Securities to Purchasers in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 9.6 (“New Security Notice”) to the Purchasers stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Equity Securities to be offered and (iii) the price and terms upon which it proposes to offer such New Securities.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of New Security Notice, each Purchaser may elect to purchase, at the price and on the terms specified issued necessary in the New Security Notice, up to order that portion of such New Securities that equals the proportion that the number of the. aggregate shares of Common Stock issued and Underlying Common Stock held by such Purchaser holder constitute the same percentage of all Common Stock (assuming full conversion assuming, in each case, the conversion, exercise or exchange of all outstanding Equity Securities, including outstanding Equity Securities held by such holder) after the issuance of such Equity Securities as before the issuance thereof; provided, however, that such preemptive right shall not apply to (a) issuances of Equity Securities to employees of the Company as and to the extent permitted by paragraph 4D(iv), (b) issuances of Equity Securities upon the conversion, exercise or exchange of other Equity Securities to which the preemptive rights granted hereunder were applicable, (c) issuances of Equity Securities in connection with an exercise of all convertible and exercisable securities then outstandingthe preemptive rights granted hereunder, or (d) bears issuances of Preferred Stock pursuant to the total number of shares this Agreement or issuances of Common Stock then outstanding (assuming full or other Equity Securities as a dividend or other distribution with respect to the Preferred Stock or upon conversion and exercise of all convertible and exercisable securities then outstanding)the Preferred Stock. The price of securities which each holder becomes entitled to purchase by reason hereof shall be the same price at which such securities are offered to others. A holder of Underlying Common Stock may exercise his or its right under this paragraph 7P to purchase Equity Securities by paying the purchase price therefor at the principal office of the Company within 15 days after receipt of notice from the Company (which notice by the Company shall promptlybe given at least 20 days before the issuance of the Equity Securities) stating the amount of Equity Securities it intends to issue and the price and characteristics thereof. The holder shall pay such purchase price in cash or by check; provided, in writinghowever, inform each Purchaser that elects if the Company is indebted to such holder, the holder shall be entitled, at the holder's sole option, to credit against the purchase price all the shares available to it (a “Fully Exercising Purchaser”) of or any other Purchaser’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully Exercising Purchaser may elect to purchase that portion of the New Securities for Company's indebtedness to such holder which Purchasers were entitled to subscribe, but which were not subscribed for by is then due (accrued and unpaid dividends on the Purchasers, that is equal to the proportion that the number of shares of Common Preferred Stock issued and held by such Fully Exercising Purchaser (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 and exercise of all convertible and exercisable securities then outstanding).
(c) If all New Securities that Purchasers are entitled to obtain pursuant to Section 7.1(b) are not elected shall be deemed to be obtained as provided in Section 7.1(b) hereof, the Company may, during the thirty (30) day period following the expiration of the period provided in Section 7.1(b) hereof, offer the remaining unsubscribed portion indebtedness for purposes of such New Securities 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 New Security Noticecredit). If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within fifteen (15) days of the execution thereof, the right provided A holder's contractual preemptive rights hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered exercised immediately prior to the Purchasers close of business on the day of payment of the purchase price in accordance herewith.
with the foregoing provisions, and at such time such holder shall be treated for all purposes as the record holder of the Equity Securities, as the case may be. As promptly as practicable (dand in any event within ten days) The right of first offer in this Section 7.1 on or after the purchase date, the Company shall not be applicable to (i) the issuance issue and deliver at its principal office a certificate or sale of up to 1,000,000 shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers certificates for the primary purpose number of soliciting full shares or retaining their services pursuant amount, whichever is applicable, of Equity Securities together with cash for any fraction of a share or portion of an Equity Security at the purchase price to which the Company’s 2007 Omnibus Securities and Incentive Plan, (ii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, and (iii) the issuance of Series A Preferred Stock pursuant to this Agreement.holder is entitled hereunder. * * *
Appears in 1 contract
Samples: Stock Purchase Agreement (Monitronics International Inc)
Contractual Preemptive Rights. Subject to (i) the terms and conditions specified in this Section 7.1 and (ii) subject to Section 7.2 below regarding certain specific financing transactions, the Company hereby grants to the Purchasers a right of first offer with respect to future sales by the Company of New Securities. Each 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. Each time If the Company proposes to offer issue, sell or otherwise transfer any New Securities, the Company shall first make an offering of such New Securities to Purchasers in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 9.6 (“New Security Notice”) to the Purchasers stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered and (iii) the price and terms upon which it proposes to offer such New Securities.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of New Security Notice, each Purchaser may elect to purchase, at the price and on the terms specified in the New Security Notice, up to that portion of such New Securities that equals the proportion that the number of shares of Common Stock issued and held by such Purchaser (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 and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Purchaser that elects to purchase all the shares available to it (a “Fully Exercising Purchaser”) of any other Purchaser’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully Exercising Purchaser may elect to purchase that portion of the New Securities for which Purchasers were entitled to subscribe, but which were not subscribed for by the Purchasers, that is equal to the proportion that the number of shares of Common Stock issued and held by such Fully Exercising Purchaser (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 and exercise of all convertible and exercisable securities then outstanding).
(c) If all New Securities that Purchasers are entitled to obtain pursuant to Section 7.1(b) are not elected to be obtained as provided in Section 7.1(b) hereof, the Company may, during the thirty (30) day period following the expiration of the period provided in Section 7.1(b) hereof, offer the remaining unsubscribed portion of such New Securities 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 New Security Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within fifteen (15) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Purchasers in accordance herewith.
(d) The right of first offer in this Section 7.1 shall not be applicable to (i) the issuance or sale of up to 1,000,000 shares of Common Stock (or options thereforany security convertible or exchangeable into Common Stock) of the Company (the "OFFERED SECURITIES"), each Shareholder who is an accredited investor (as defined under Rule 501 of Regulation D) shall have the right to purchase the number of Offered Securities provided below in this Section 4.5; provided, that the provisions of this Section 4.5 shall not apply to any issuances (a) to employeesany employee of the Company or any of its Subsidiaries pursuant to any stock option or similar benefit plan or any employee stock offering, directors(b) in connection with a Public Offering, consultants and other service providers for (c) of any Common Stock in payment of any dividend on the primary purpose of soliciting or retaining their services Common Stock pursuant to the Company’s 2007 Omnibus Securities and Incentive Planterms of the Certificate of Incorporation, (iid) of any Common Stock in a merger, stock exchange, purchase of assets or similar transaction, (e) of any Common Stock upon exercise of the Warrants or (f) of any Common Stock to any Person that is not a Shareholder or an Affiliate of a Shareholder at the time of issuance. The Company shall give each Shareholder at least 20 days' prior written notice of any such proposed issuance setting forth in reasonable detail the proposed terms and conditions thereof and shall offer to each Shareholder the opportunity to purchase such securities at the same price, on the same terms (including, if more than one type of security is issued, each type of security in the same proportion offered), and at the same time as the securities are proposed to be issued by the Company. A Shareholder may exercise its preemptive rights by delivery of an irrevocable written notice to the Company not more than 10 days after delivery of the Company's notice, which notice shall state the number of Offered Securities such Shareholder (each a "REQUESTING SHAREHOLDER" and collectively, the "REQUESTING SHAREHOLDERS") would like to purchase. If the total number of Offered Securities requested to be purchased exceeds the total number of Offered Securities proposed to be issued and sold by the Company, then the Company will issue and sell the Offered Securities to the Requesting Shareholders pro rata based on the number of Shares (determined on a Fully-Diluted basis) owned by each such Shareholder prior to the issuance at hand. If the total number of securities pursuant Offered Securities requested to be purchased does not equal the conversion or exercise total number of convertible or exercisable securities outstanding as of Offered Securities proposed to be issued and sold by the date hereofCompany, and (iii) the issuance of Series A Preferred Stock pursuant Company shall give notice to this Agreement.each Requesting Shareholder
Appears in 1 contract
Samples: Investors' Agreement (Doane Pet Care Enterprises Inc)
Contractual Preemptive Rights. Subject The parties hereto agree that their respective preemptive or similar rights with respect to (i) the terms and conditions specified in issuance of Company Securities by the Company after the date hereof shall be governed exclusively by this Section 7.1 and (ii) subject Paragraph 2C. If prior to Section 7.2 below regarding certain specific financing transactionsa Qualified Public Offering, the Company hereby grants to the Purchasers a right of first offer with respect to future sales shall issue any Company Securities (including any transfer by the Company of New previously-issued Company Securities. Each Purchaser ), each holder of 2002 Warrant Shares, Recapitalization Common Stock or Series A Preferred Stock if a Dividend Election has not been made (and, with respect to Austin Ventures, each Affiliate of Austin Ventures (collectively, the “AV Partners”)) and the Hull Partnership shall be entitled to apportion purchase 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 New Securities, the Company shall first make an offering proportion of such New Company Securities to Purchasers in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 9.6 (“New Security Notice”) equal to the Purchasers stating quotient determined by dividing (i) its bona fide intention to offer such New Securities, (ii1) the number of such New Securities to be offered and (iii) the price and terms upon which it proposes to offer such New Securities.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of New Security Notice, each Purchaser may elect to purchase, at the price and on the terms specified in the New Security Notice, up to that portion of such New Securities that equals the proportion that the number of aggregate shares of Common Stock issued and Series A Preferred Stock beneficially held by such Purchaser holder and (assuming full conversion and exercise of all convertible and exercisable securities then outstanding2) bears to the total number of shares of Common Stock, 2002 Warrant Shares and Series A Preferred Stock then outstanding (assuming full conversion and assuming, in each case, the conversion, exercise or exchange of all convertible outstanding Company Securities, including outstanding Company Securities held by such holder) (with respect to the AV Partners, Austin Ventures shall designate which of the AV Partners shall purchase shares and exercisable securities then outstandingin what quantities so that the proportion of all shares purchased by the AV Partners and Austin Ventures in the aggregate is the same as if only Austin Ventures were purchasing). The Company shall promptly; provided, in writing, inform each Purchaser that however (a) if such holder elects to purchase all the shares available to it (a “Fully Exercising Purchaser”) of any other Purchaser’s failure to do likewise. During the ten (10) day period commencing after such information is givenCompany Securities, each Fully Exercising Purchaser may elect such holder shall be required to purchase (i) such Company Securities on the same terms and conditions as such Company Securities were issued by the Company and (ii) if more than one type of Company Security is issued and/or such Company Security is issued together with any Funded Debt, a pro rata amount of each such Company Security and/or such Funded Debt issued and (b) that portion such preemptive right shall not apply to (i) Company Securities issued to employees or independent contractors of or consultants to the Company under any Approved Plan, (ii) Company Securities issued in connection with an exercise of the New preemptive rights granted hereunder, (iii) Series A Preferred Stock issued to Austin Ventures as a dividend or dividends in Series A Preferred Stock, (iv) Company Securities for issued upon conversion of Series A Preferred Stock, (v) Company Securities issued upon exercise of the Xxxxxx Warrant or the 0000 Xxxxxxx or upon conversion of Class B Common Stock, (vi) Company Securities issued as consideration in the merger with or acquisition of another Person or an acquisition of assets other than cash, (vii) Company Securities issued in connection with a public offering, or (viii) Company Securities issued as a result of a Tax Valuation Event (as defined in the Recapitalization Agreement). A holder of Recapitalization Common Stock or Series A Preferred Stock, an AV Partner or the Hull Partnership may exercise his or its right under this Xxxxxxxxx 0X to purchase Company Securities by providing written notice to the Company within 20 days, and by paying the purchase price therefor at the principal office of the Company within 30 days, after the receipt of notice from the Company (which Purchasers were entitled to subscribe, but which were not subscribed for notice by the Purchasers, that is equal Company shall be given at least 30 days before the issuance of the Company Securities) stating the amount of Company Securities it intends to issue and the proportion that the number of shares of Common Stock issued price and held by such Fully Exercising Purchaser (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 and exercise of all convertible and exercisable securities then outstanding).
(c) If all New Securities that Purchasers are entitled to obtain pursuant to Section 7.1(b) are not elected to be obtained as provided in Section 7.1(b) hereofcharacteristics thereof. The holder, the Company mayHull Partnership or AV Partners, during the thirty (30) day period following the expiration of the period provided as applicable, shall pay such purchase price in Section 7.1(b) hereof, offer the remaining unsubscribed portion of such New Securities 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 New Security Noticeimmediately available funds. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within fifteen (15) days of the execution thereofA holder’s, the right provided Hull Partnership’s or an AV Partner’s, as applicable, contractual preemptive rights hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered exercised immediately prior to the Purchasers close of business on the day of payment of the purchase price in accordance herewith.
with the foregoing provisions, and at such time such holder, the Hull Partnership or AV Partner, as applicable, shall be treated for all purposes as the record holder of the Company Securities, as the case may be. As promptly as practicable (dand in any event within 10 days) The right of first offer in this Section 7.1 on or after the purchase date, the Company shall not be applicable to (i) the issuance issue and deliver at its principal office a certificate or sale of up to 1,000,000 shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers certificates for the primary purpose number of soliciting full shares or retaining their services pursuant amount, whichever is applicable, of Company Securities together with cash for any fraction of a share or portion of a Company Security at the purchase price to which the Company’s 2007 Omnibus Securities and Incentive Planholder, (ii) the issuance of securities pursuant to the conversion Hull Partnership or exercise of convertible or exercisable securities outstanding AV Partner, as of the date hereofapplicable, and (iii) the issuance of Series A Preferred Stock pursuant to this Agreementis entitled hereunder.
Appears in 1 contract
Samples: Shareholders Agreement (Monitronics International Inc)
Contractual Preemptive Rights. Subject Notwithstanding any preemptive or similar rights that any of the parties hereto may have pursuant to any other agreement, the parties hereto agree that their respective preemptive or similar rights with respect to the issuance of Company Securities by the Company after the date hereof shall be governed exclusively by this Xxxxxxxxx 0X, and any such preemptive or similar rights contained in any other agreement, including without limitation, the Series A Purchase Agreement, the Series B Purchase Agreement, the Preferred B Warrants, the Series C Purchase Agreement, the Note Agreement the Mezzanine Warrants, are hereby terminated and rescinded in their entirety. If prior to a Qualified Public Offering, the Company shall issue any Company Securities (including any transfer of previously-issued Company Securities), each holder of Underlying Common Stock and Warrant Shares and the Hull Family Limited Partnership (the "Hull Partnership") shall be entitled to purchase the same proportion of such Company Securities to be issued necessary in order that the aggregate shares of Common Stock beneficially held by such holder constitute the same percentage of all Common Stock (assuming, in each case, the conversion, exercise or exchange of all outstanding Company Securities, including outstanding Company Securities held by such holder), after the issuance of such Company Securities as before the issuance thereof; provided, however, (a) if such holder elects to purchase such Company Securities, such holder shall be required to purchase (i) such Company Securities on the same terms and conditions as such Company Securities were issued by the Company and (ii) if more than one type of Company Security is issued, a pro rata amount of each such Company Security issued and (b) that such preemptive right shall not apply to (i) the terms and conditions specified in this Section 7.1 and (ii) subject Company Securities issued to Section 7.2 below regarding certain specific financing transactions, employees or consultants to the Company hereby grants to the Purchasers a right of first offer with respect to future sales by the Company of New Securities. Each 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. Each time the Company proposes to offer under any New Securities, the Company shall first make an offering of such New Securities to Purchasers in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section 9.6 (“New Security Notice”) to the Purchasers stating (i) its bona fide intention to offer such New SecuritiesApproved Plan, (ii) Company Securities issued upon the number conversion, exercise or exchange of such New Company Securities to be offered and which the preemptive rights under this Paragraph 2C were previously applicable, (iii) Company Securities issued in connection with an exercise of the preemptive rights granted hereunder, (iv) Company Securities issued pursuant to the Series C Exchange Agreement or the Series D-1 Purchase Agreement, (v) Company Securities issued upon conversion of the Preferred Stock or exercise of the Warrants, the 2001 Warrants and the Xxxxxx Warrant or upon conversion of Class B Common Stock issued upon exercise of the Xxxxxx Warrant, (vi) Company Securities issued as consideration in the merger with or acquisition of another Person, (vii) Company Securities issued in connection with a public offering, or (viii) shares of Class A Common Stock issued in payment of dividends on Series A Preferred Stock or Series C Preferred Stock pursuant to Article IV, Paragraph 5L of the Articles of Incorporation. A holder of Underlying Common Stock or Warrant Shares or the Hull Partnership may exercise his or its right under this Xxxxxxxxx 0X to purchase Company Securities by providing written notice to the Company within 20 days, and by paying the purchase price therefor at the principal office of the Company within 30 days, after the receipt of notice from the Company (which notice by the Company shall be given at least 30 days before the issuance of the Company Securities) stating the amount of Company Securities it intends to issue and the price and terms upon which it proposes to offer such New Securities.
(b) By written notification received by the Company within twenty (20) calendar days after the giving of New Security Notice, each Purchaser may elect to purchase, at the price and on the terms specified in the New Security Notice, up to that portion of such New Securities that equals the proportion that the number of shares of Common Stock issued and held by such Purchaser (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 and exercise of all convertible and exercisable securities then outstanding)characteristics thereof. The Company holder shall promptly, pay such purchase price in writing, inform each Purchaser that elects to purchase all the shares immediately available to it (a “Fully Exercising Purchaser”) of any other Purchaser’s failure to do likewisefunds. During the ten (10) day period commencing after such information is given, each Fully Exercising Purchaser may elect to purchase that portion of the New Securities for which Purchasers were entitled to subscribe, but which were not subscribed for by the Purchasers, that is equal to the proportion that the number of shares of Common Stock issued and held by such Fully Exercising Purchaser (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 and exercise of all convertible and exercisable securities then outstanding).
(c) If all New Securities that Purchasers are entitled to obtain pursuant to Section 7.1(b) are not elected to be obtained as provided in Section 7.1(b) hereof, the Company may, during the thirty (30) day period following the expiration of the period provided in Section 7.1(b) hereof, offer the remaining unsubscribed portion of such New Securities 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 New Security Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within fifteen (15) days of the execution thereof, the right provided A holder's contractual preemptive rights hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered exercised immediately prior to the Purchasers close of business on the day of payment of the purchase price in accordance herewith.
with the foregoing provisions, and at such time such holder shall be treated for all purposes as the record holder of the Company Securities, as the case may be. As promptly as practicable (dand in any event within 10 days) The right of first offer in this Section 7.1 on or after the purchase date, the Company shall not be applicable to (i) the issuance issue and deliver at its principal office a certificate or sale of up to 1,000,000 shares of Common Stock (or options therefor) to employees, directors, consultants and other service providers certificates for the primary purpose number of soliciting full shares or retaining their services pursuant amount, whichever is applicable, of Company Securities together with cash for any fraction of a share or portion of a Company Security at the purchase price to which the Company’s 2007 Omnibus Securities and Incentive Plan, (ii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof, and (iii) the issuance of Series A Preferred Stock pursuant to this Agreementholder is entitled hereunder.
Appears in 1 contract
Samples: Shareholders Agreement (Monitronics International Inc)
