Financing Issuances. (i) No less than ten (10), and no more than thirty (30), calendar days prior to the issuance and sale of any New Securities for cash consideration in a financing transaction (which shall not include any transaction specifically described in subsection (c) below), the Company shall notify the Purchaser of the Company's intention to make such issuance by written dated notice (the "Company's Financing Issuance Notice") setting forth the number and type of New Securities and the calculation of the Purchaser's Pro Rata Portion. (ii) Within fourteen (14) calendar days after receipt by the Purchaser of the Company's Financing Issuance Notice, the Purchaser shall notify the Company by written notice (the "Purchaser's Financing Issuance Notice") stating whether the Purchaser desires to buy the Purchaser's Pro Rata Portion, or any part thereof, for the Purchase Price. (iii) If the Company issues and sells the New Securities in the financing transaction, then the Purchaser shall be obligated to purchase (if it has elected to exercise its right to maintain in the Purchaser's Financing Issuance Notice) the Purchaser's Pro Rata Portion (or part thereof) for the Purchase Price with such Purchase Price based on the price per share paid by the ultimate investors in the financing. The closing of any purchases pursuant to this Section 8.1(b) shall take place contemporaneously with such financing, subject to the provisions of paragraph (d) below. If the Purchaser either (A) does not deliver a Purchaser's Financing Issuance Notice within the time periods specified above or (B) elects in the Purchaser's Financing Issuance Notice not to purchase the Purchaser's Pro Rata Portion or any part thereof the Company shall not be obligated to sell to the Purchaser the Purchaser's Pro Rata Portion. (iv) The purchase price per share at which the Purchaser shall be entitled to purchase the Purchaser's Pro Rata Portion shall be determined as follows: (1) If the event giving rise to the Purchaser's rights is a sale or issuance of New Securities for cash or property, including, without limitation, for securities or assets or by way of merger in connection with the acquisition of another company, the price shall be the price per share specified in the agreement relating to such issuance, or if no such price is specified, the Fair Market Value of the New Securities determined as of the date of issuance and sale of such New Securities. (2) If the event giving rise to the Purchaser's rights is an issuance of New Securities upon conversion of any security convertible into or exchangeable for Common Stock or upon exercise of any option, warrant or right to acquire any New Securities, the price shall be the exercise price per share of such New Securities determined as of the date of such conversion or exercise plus a pro-rata portion of the premium paid for the underlying option, warrant or right. (3) If the event giving rise to the Purchaser's rights is an underwritten public offering or an institutional private placement, the price shall be the price per share at which the New Securities were sold by the Company. (4) In all other cases, the price shall be the Fair Market Value of the New Securities determined as of the date of the issuance and sale of such New Securities.
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Samples: Common Stock Purchase Agreement (Symphonix Devices Inc), Common Stock Purchase Agreement (Siemens Aktiengesellschaft)
Financing Issuances. (i) No less than ten (10), and no more than thirty (30), calendar days prior to the issuance and sale of any New Securities for cash consideration in a financing transaction (which shall not include any transaction specifically described in subsection subsections (c) or (d) below), the Company shall notify the Purchaser of the Company's intention to make such issuance by written dated notice (the "Company's Financing Issuance Notice") setting forth the number and type of New Securities and Securities, the calculation of the Purchaser's Pro Rata Portion, the closing price of the Company Common Stock on the prior trading day, and the Warrant Coverage.
(ii) Within fourteen seven (147) calendar days after receipt by the Purchaser of the Company's Financing Issuance Notice, the Purchaser shall notify the Company by written notice (the "Purchaser's Financing Issuance Notice") stating whether the Purchaser desires to buy the Purchaser's Pro Rata Portion, or any part thereof, for the Purchase Price and, if entitled to a Warrant pursuant to paragraph (a)(ii)(A), (B) or (C) of this Section 3.1, the Warrant for the Warrant Price. The closing price of the Company Common Stock on Nasdaq or other securities exchange on which the Voting Stock is traded on the date of the Purchaser's Financing Issuance Notice shall be the "Estimated Purchase Price".
(iii) If the Company issues and sells the New Securities in the financing transaction, then the Purchaser shall be obligated to purchase (if it has elected to exercise its right to maintain in the Purchaser's Financing Issuance Notice) the Purchaser's Pro Rata Portion (or part thereof) for the Purchase Price and the Warrant for the Warrant Price (with such Purchase Price and Warrant Price based on the price per share paid by the ultimate investors in the financing); provided, however, that if a preliminary "red xxxxxxx" prospectus is filed and the Fair Market Value of the Company's Common Stock is 10% greater than the Estimated Purchase Price as set forth in the Purchaser's Financing Issuance Notice at the closing of Nasdaq or other securities exchange on which the Voting Stock is traded on the date three (3) trading days after such filing, the Purchaser shall be under no obligation to purchase the Purchaser's Pro Rata Portion or the Warrant (even if it has elected to purchase the Purchaser's Pro Rata Portion and/or the Warrant in the Purchaser's Financing Issuance Notice) but shall have the right to buy the Purchaser's Pro Rata Portion, or any part thereof, and/or the Warrant (as applicable) if the Purchaser delivers a second Purchaser's Financing Issuance Notice within five (5) calendar days after the end of the three-day trading period set forth above, but the Purchaser shall then be committed in accordance with its election detailed in such Purchaser's Financing Issuance Notice. The closing of any purchases pursuant to this Section 8.1(b(b) shall take place contemporaneously with such financing, subject to the provisions of paragraph (de) below. If the Purchaser either (A) does not deliver a Purchaser's Financing Issuance Notice within the time periods specified above or (B) elects in the Purchaser's Financing Issuance Notice not to purchase the Purchaser's Pro Rata Portion or any part thereof and/or the Warrant (as applicable), the the Company shall not be obligated to sell to the Purchaser the Purchaser's Pro Rata Portion, and/or the Warrant, as the case may be.
(iv) The purchase price per share at which the Purchaser shall be entitled to purchase the Purchaser's Pro Rata Portion shall be determined as follows:
(1) If the event giving rise to the Purchaser's rights is a sale or issuance of New Securities for cash or property, including, without limitation, for securities or assets or by way of merger in connection with the acquisition of another company, the price shall be the price per share specified in the agreement relating to such issuance, or if no such price is specified, the Fair Market Value of the New Securities determined as of the date of issuance and sale of such New Securities.
(2) If the event giving rise to the Purchaser's rights is an issuance of New Securities upon conversion of any security convertible into or exchangeable for Common Stock or upon exercise of any option, warrant or right to acquire any New Securities, the price shall be the exercise price per share of such New Securities determined as of the date of such conversion or exercise plus a pro-rata portion of the premium paid for the underlying option, warrant or right.
(3) If the event giving rise to the Purchaser's rights is an underwritten public offering or an institutional private placement, the price shall be the price per share at which the New Securities were sold by the Company.
(4) In all other cases, the price shall be the Fair Market Value of the New Securities determined as of the date of the issuance and sale of such New Securities.
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Samples: Governance Agreement (Infoseek Corp /De/), Governance Agreement (Walt Disney Co/)
Financing Issuances. (i) If the Company proposes to issue New Securities primarily for cash consideration in a financing transaction (except in any transaction specifically described in Section 3.1(c)) and the effect of consummating such transaction would result in a reduction in the percentage interest of the Total Outstanding Company Equity held by Terra and the Terra Controlled Corporations (a “Financing Transaction”), Terra shall have the right to purchase for cash Terra’s Applicable Right to Maintain Percentage, or any part thereof, of the aggregate amount of such New Securities sold in such Financing Transaction at the same price per New Security at which such New Securities are sold in such Financing Transaction to the other ultimate investors (the “Purchase Price”), as further described in this Section 3.1(b).
(ii) No less than ten seventeen (10), and no more than thirty (30), calendar days 17) Business Days prior to the issuance and sale of any New Securities for cash consideration in a financing transaction (which shall not include any transaction specifically described in subsection (c) below)Financing Transaction, the Company shall notify the Purchaser Terra of the Company's ’s intention to make such issuance by written dated notice setting forth: (v) the proposed date of the closing of the Financing Transaction, (w) the number, type and material terms of New Securities to be sold in the Financing Transaction, (x) the calculation of Terra’s estimated Applicable Right to Maintain Percentage of the New Securities to be sold in the Financing Transaction (on the basis of information filed by members of the Terra Group with the SEC), (y) the closing price or in the absence of a closing price, the closing bid price, of the Company Common Stock on the prior trading day on the principal securities exchange on which the Company Common Stock is then trading and (z) the capitalization of the Company on an actual and pro forma basis after giving effect to the issuance of New Securities (the "Company's “Company Financing Issuance Notice") setting forth the number and type of New Securities and the calculation of the Purchaser's Pro Rata Portion”).
(iiiii) Within fourteen At least two (142) calendar days after receipt by Business Days prior to the Purchaser proposed date of the Company's closing of the Financing Transaction as set forth in the Company Financing Issuance Notice, the Purchaser Terra shall notify the Company by written notice dated notice, stating (A) the number of New Securities to be purchased by Terra in the Financing Transaction, which shall not exceed Terra’s Applicable Right to Maintain Percentage, (the "Purchaser's “Direct Purchase Securities”) and/or (B) whether or not Terra has made a bona fide determination to acquire Voting Stock or Convertible Securities in open market purchases, or privately negotiated purchases from Disinterested Stockholders, so as, together with any Direct Purchase Securities, to satisfy any portion of Terra’s Applicable Right to Maintain Percentage within the applicable Grace Period relating to the Company Financing Issuance Notice (the “Terra Financing Issuance Notice"”). If Terra fails to deliver a Terra Financing Issuance Notice at least two (2) stating whether Business Days prior to the Purchaser desires proposed date of the closing of the Financing Transaction as set forth in the Company Financing Issuance Notice, Terra shall be deemed to buy have elected not to acquire any Direct Purchase Securities or to satisfy any portion of its Applicable Right to Maintain Percentage with respect to such Financing Transaction; provided, however, that if the Purchaser's Pro Rata Portionactual closing of such Financing Transaction does not occur within ten (10) Business Days following the proposed date of the closing set forth in, or and on the terms and conditions in all material respects as set forth in, the Company Financing Issuance Notice, the Company shall be obligated to deliver a revised Company Financing Issuance Notice and Terra shall have ten (10) Business Days following the date of receipt of the revised Company Financing Issuance Notice to provide a new Terra Financing Issuance Notice, which revised Company Financing Issuance Notice and Terra Financing Issuance Notice shall supersede and replace any part thereofprior delivered Company Financing Issuance Notice and Terra Financing Issuance Notice, for respectively, and shall otherwise be subject to the Purchase Priceterms and processes set forth in this Section 3.1(b).
(iiiiv) If the Company issues and sells the New Securities in the financing transactiona Financing Transaction that was subject to a Company Financing Issuance Notice, then the Purchaser Terra shall be obligated to purchase the number of Direct Purchase Securities, if any, that are subject to the Terra Financing Issuance Notice delivered to the Company pursuant to Section 3.1(b)(iii) for the per share Purchase Price; provided, however, that if a preliminary “red xxxxxxx” prospectus is filed in connection with such Company Financing Transaction and (if it has elected to exercise its right to maintain A) the Fair Market Value of the Company’s Common Stock is, as of the close of the trading day on Nasdaq or other principal securities exchange on which the Company Common Stock is then trading, on the date three (3) trading days after such filing, fifteen percent (15%) greater than (B) the closing price (or in the Purchaser's absence of a closing price, the closing bid price) of the Company Common Stock on Nasdaq or such other principal securities exchange on which the Company Common Stock is traded on the day prior to the delivery of a Terra Financing Issuance Notice) , Terra shall be under no obligation to purchase the Purchaser's Pro Rata Portion (or part thereof) for the Direct Purchase Price with such Purchase Price based on the price per share paid by the ultimate investors in the financingSecurities. The closing of any purchases pursuant to this Section 8.1(b) the Direct Purchase Securities, if any, shall take place contemporaneously with such financingFinancing Transaction, subject to the provisions of paragraph Section 3.1(e).
(dv) belowIf, pursuant to the terms of Section 3.1(b)(iv), Terra is no longer obligated to purchase Direct Purchase Securities that were subject to a validly delivered Terra Financing Issuance Notice, Terra shall have the right, within fifteen (15) Business Days after the closing of the Financing Transaction, to deliver to the Company an amended Terra Financing Issuance Notice stating whether or not Terra has made a bona fide determination to acquire Voting Stock or Convertible Securities in open market purchases, or privately negotiated purchases from Disinterested Stockholders, so as, together with any New Securities subject to the previously delivered Terra Financing Issuance Notice, to satisfy any portion of Terra’s Applicable Right to Maintain Percentage within the applicable Grace Period relating to the any then effective Terra Financing Issuance Notice. If the Purchaser either (A) does not Terra fails to deliver a Purchaser's an amended Terra Financing Issuance Notice within the time periods specified above such fifteen (15) Business Day Period, Terra shall be deemed to have elected not to satisfy any portion of Terra’s Applicable Right to Maintain Percentage other than with respect to Voting Stock or (B) elects in the Purchaser's Convertible Securities, if any, that are subject to any then effective Terra Financing Issuance Notice and that were not Direct Purchase Securities.
(vi) If at any time Terra has determined to purchase reduce the Purchaser's Pro Rata Portion shares of Voting Stock or any part thereof Convertible Securities that are the subject of a then effective Terra Financing Issuance Notice, Terra shall as promptly as practicable deliver to the Company an amended Terra Financing Issuance Notice stating the lower number of shares of Voting Stock or Convertible Securities for which Terra has made a bona fide determination to acquire in open market purchases, or privately negotiated purchases from Disinterested Stockholders, within the applicable Grace Period relating to the then effective Company Financing Issuance Notice and only such lower number of shares of Voting Stock or Convertible Securities, if any, shall thereafter be deemed to be subject to the applicable Terra Financing Issuance Notice.
(vii) Notwithstanding anything in this Section 3.1(b) to the contrary, in the event the Company issues New Securities that are Convertible Securities in a Financing Transaction:
(1) If Terra purchases Direct Purchase Securities constituting one hundred percent (100%) of Terra’s Applicable Right to Maintain Percentage in such Financing Transaction, the Company shall not be obligated to sell subsequently deliver a Company Financing Issuance Notice relating to the Purchaser the Purchaser's Pro Rata Portion.
(iv) The purchase price per share at which the Purchaser shall be entitled to purchase the Purchaser's Pro Rata Portion shall be determined as follows:
(1) If the event giving rise to the Purchaser's rights is a sale or issuance of New Securities for cash that are Voting Stock that are issued upon conversion or property, including, without limitation, for securities or assets or exercise of the Convertible Securities that were purchased by way of merger in connection with the acquisition of another company, the price shall be the price per share specified other purchasers in the agreement relating to such issuance, or if no such price is specified, the Fair Market Value of the New Securities determined as of the date of issuance and sale of such New Securities.Financing Transaction; and
(2) If Terra purchases Direct Purchase Securities constituting less than one hundred percent (100%) of Terra’s Applicable Right to Maintain Percentage in such Financing Transaction, the event giving rise Company shall only be obligated to subsequently deliver a Company Financing Issuance Notice pursuant to Section 3.1(d) relating to the Purchaser's rights is an issuance of New Securities that are Voting Stock that are issued upon conversion of any security convertible into or exchangeable for Common Stock or upon exercise of any optionthe Convertible Securities that were purchased by the other purchasers in the Financing Transaction, warrant or and Terra shall have the right to acquire any New Securitiesacquire, in open market purchases, or privately negotiated purchases from Disinterested Stockholders, up to the price shall be number of shares of Voting Stock issuable upon conversion of the exercise price per share number of Direct Purchase Securities constituting one hundred percent (100%) of Terra’s Applicable Right to Maintain Percentage that were not purchased by Terra. Within fifteen (15) Business Days after receipt by Terra of such New Securities determined Company Financing Issuance Notice, Terra shall notify the Company by written dated notice stating whether or not Terra has made a bona fide determination to acquire Voting Stock in open market purchases, or privately negotiated purchases from Disinterested Stockholders, so as of to acquire within the date of such conversion applicable Grace Period relating to the Company Financing Issuance Notice, all or exercise plus a pro-rata any portion of the premium paid for shares of Voting Stock that are the underlying option, warrant or rightsubject to such Company Financing Issuance Notice.
(3) If the event giving rise to the Purchaser's rights is an underwritten public offering or an institutional private placement, the price shall be the price per share at which the New Securities were sold by the Company.
(4) In all other cases, the price shall be the Fair Market Value of the New Securities determined as of the date of the issuance and sale of such New Securities.
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Financing Issuances. (i) If the Company proposes to issue New Securities primarily for cash consideration in a financing transaction (except in any transaction specifically described in Section 3.1(c)) and the effect of consummating such transaction would result in a reduction in the percentage interest of the Total Outstanding Company Equity held by the Investor Group (a “Financing Transaction”), Investor shall have the right to purchase for cash Investor’s Applicable Right to Maintain Percentage, or any part thereof, of the aggregate amount of such New Securities sold in such Financing Transaction at the same price per New Security at which such New Securities are sold in such Financing Transaction to the other ultimate investors (the “Purchase Price”), as further described in this Section 3.1(b).
(ii) No less than ten seventeen (10), and no more than thirty (30), calendar days 17) Business Days prior to the issuance and sale of any New Securities for cash consideration in a financing transaction (which shall not include any transaction specifically described in subsection (c) below)Financing Transaction, the Company shall notify the Purchaser Investor of the Company's ’s intention to make such issuance by written dated notice setting forth: (v) the proposed date of the closing of the Financing Transaction, (w) the number, type and material terms of New Securities to be sold in the Financing Transaction, (x) the calculation of Investor’s estimated Applicable Right to Maintain Percentage of the New Securities to be sold in the Financing Transaction (on the basis of information filed by members of the Investor Group with the SEC), (y) the closing price or in the absence of a closing price, the closing bid price, of the Company Common Stock on the prior trading day on the principal securities exchange on which the Company Common Stock is then trading and (z) the capitalization of the Company on an actual and pro forma basis after giving effect to the issuance of New Securities (the "Company's “Company Financing Issuance Notice") setting forth the number and type of New Securities and the calculation of the Purchaser's Pro Rata Portion”).
(iiiii) Within fourteen At least two (142) calendar days after receipt by Business Days prior to the Purchaser proposed date of the Company's closing of the Financing Transaction as set forth in the Company Financing Issuance Notice, the Purchaser Investor shall notify the Company by written dated notice (the "Purchaser's “Investor Financing Issuance Notice"”), stating the number of New Securities to be purchased by Investor in the Financing Transaction, which shall not exceed Investor’s Applicable Right to Maintain Percentage, (the “Direct Purchase Securities”). If Investor fails to deliver an Investor Financing Issuance Notice at least two (2) stating whether Business Days prior to the Purchaser desires proposed date of the closing of the Financing Transaction as set forth in the Company Financing Issuance Notice, Investor shall be deemed to buy have elected not to acquire any Direct Purchase Securities; provided, however, that if the Purchaser's Pro Rata Portionactual closing of such Financing Transaction does not occur within ten (10) Business Days following the proposed date of the closing set forth in, or and on the terms and conditions in all material respects as set forth in, the Company Financing Issuance Notice, the Company shall be obligated to deliver a revised Company Financing Issuance Notice and Investor shall have ten (10) Business Days following the date of receipt of the revised Company Financing Issuance Notice to provide a new Investor Financing Issuance Notice, which revised Company Financing Issuance Notice and Investor Financing Issuance Notice shall supersede and replace any part thereofprior delivered Company Financing Issuance Notice and Investor Financing Issuance Notice, for respectively, and shall otherwise be subject to the Purchase Priceterms and processes set forth in this Section 3.1(b).
(iiiiv) If the Company issues and sells the New Securities in the financing transactiona Financing Transaction that was subject to a Company Financing Issuance Notice, then the Purchaser Investor shall be obligated to purchase the number of Direct Purchase Securities, if any, that are subject to the Investor Financing Issuance Notice delivered to the Company pursuant to Section 3.1(b)(iii) for the per share Purchase Price; provided, however, that if a preliminary “red xxxxxxx” prospectus is filed in connection with such Financing Transaction and (if it has elected to exercise its right to maintain A) the Fair Market Value of the Company Common Stock is, as of the close of the trading day on Nasdaq or other principal securities exchange on which the Company Common Stock is then trading, on the date three (3) trading days after such filing, fifteen percent (15%) greater than (B) the closing price (or in the Purchaser's absence of a closing price, the closing bid price) of the Company Common Stock on Nasdaq or such other principal securities exchange on which the Company Common Stock is traded on the day prior to the delivery of an Investor Financing Issuance Notice) , Investor shall be under no obligation to purchase the Purchaser's Pro Rata Portion (or part thereof) for the Direct Purchase Price with such Purchase Price based on the price per share paid by the ultimate investors in the financingSecurities. The closing of any purchases pursuant to this Section 8.1(b) the Direct Purchase Securities, if any, shall take place contemporaneously with such financingFinancing Transaction, subject to the provisions of paragraph Section 3.1(e).
(dv) below. If Notwithstanding anything in this Section 3.1(b) to the Purchaser either (A) does not deliver a Purchaser's Financing Issuance Notice within the time periods specified above or (B) elects contrary, in the Purchaser's event the Company issues New Securities that are Convertible Securities in a Financing Issuance Notice not Transaction:
(1) If Investor purchases Direct Purchase Securities constituting one hundred percent (100%) of Investor’s Applicable Right to purchase the Purchaser's Pro Rata Portion or any part thereof Maintain Percentage in such Financing Transaction, the Company shall not be obligated to sell subsequently deliver a Company Financing Issuance Notice relating to the Purchaser the Purchaser's Pro Rata Portion.
(iv) The purchase price per share at which the Purchaser shall be entitled to purchase the Purchaser's Pro Rata Portion shall be determined as follows:
(1) If the event giving rise to the Purchaser's rights is a sale or issuance of New Securities for cash that are Voting Stock that are issued upon conversion or property, including, without limitation, for securities or assets or exercise of the Convertible Securities that were purchased by way of merger in connection with the acquisition of another company, the price shall be the price per share specified other purchasers in the agreement relating to such issuance, or if no such price is specified, the Fair Market Value of the New Securities determined as of the date of issuance and sale of such New Securities.Financing Transaction; and
(2) If Investor purchases Direct Purchase Securities constituting less than one hundred percent (100%) of Investor’s Applicable Right to Maintain Percentage in such Financing Transaction, the event giving rise Company shall only be obligated to subsequently deliver a Company Financing Issuance Notice pursuant to Section 3.1(d) relating to the Purchaser's rights is an issuance of New Securities that are Voting Stock that are issued upon conversion of any security convertible into or exchangeable for Common Stock or upon exercise of any optionthe Convertible Securities that were purchased by the other purchasers in the Financing Transaction, warrant or and Investor shall have the right to acquire any New from the Company as additional Direct Purchase Securities, up to the price shall be number of shares of Voting Stock issuable upon conversion of the exercise price per share number of Direct Purchase Securities constituting, together with the other Direct Purchase Securities purchased, one hundred percent (100%) of Investor’s Applicable Right to Maintain Percentage that were not purchased by Investor. Within fifteen (15) Business Days after receipt by Investor of such New Securities determined as of Company Financing Issuance Notice, Investor shall notify the date of Company by written dated notice stating whether or not Investor has made a bona fide determination to acquire such conversion or exercise plus a pro-rata portion of the premium paid for the underlying option, warrant or right.
(3) If the event giving rise to the Purchaser's rights is an underwritten public offering or an institutional private placement, the price shall be the price per share at which the New Securities were sold by the Company.
(4) In all other cases, the price shall be the Fair Market Value of the New Securities determined as of the date of the issuance and sale of such New additional Direct Purchase Securities.
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