Common use of Grant of Preemptive Right Clause in Contracts

Grant of Preemptive Right. If the Company shall propose the issuance of any equity securities, options therefor or securities convertible or exercisable for equity securities (each an “Equity Security” and together, “Equity Securities”), each Investor shall be entitled to purchase the Pro-rata Portion (as defined below) of such Equity Securities to be issued; provided, however, that this contractual preemptive right shall not apply to issuances of Equity Securities: (a) that are made pursuant to the Purchase Agreement; (b) upon conversion of any shares of Preferred Stock; (c) to officers, directors or employees of, or consultants or other service providers to, the Company as compensation for services, directly or pursuant to a stock option plan or an agreement approved by the Board of Directors (including the approval or consent of at least three of the Preferred Directors then in office); (d) to banks, savings and loan associations, equipment lessors or other similar lending institutions in connection with such entities providing working capital credit facilities or equipment financing to the Company pursuant to a plan or arrangement approved by the Board of Directors (including at least three of the Preferred Directors then in office); (e) pursuant to a transaction for which adjustments of the Conversion Price (as defined in the Certificate of Incorporation) are made pursuant to Subsection 4(d)(iii) of the Certificate of Incorporation; (f) as a dividend or distribution on Common Stock or Preferred Stock, or to all stockholders of the Company generally, and as a result of which appropriate adjustment is made to the respective Conversion Prices (as defined in the Certificate of Incorporation) of each series of Preferred Stock; (g) pursuant to bona fide business or technology acquisitions (or licenses) of or by the Corporation, whether by merger, consolidation, sale of assets, sale or exchange of stock reorganization or otherwise, that is approved by the Board of Directors (including the approval or consent of at least three Preferred Directors then in office; (i) in, or after, a Qualified Public Offering; (h) pursuant to or in connection with technology license, development, OEM, marketing or other similar agreements or strategic partnerships approved by the Board of Directors (including at least three of the Preferred Directors then in office); (j) for a charitable purpose, provided that such grant has been approved by the Board of Directors (including the approval or consent of at least three Preferred Directors then in office); or (k) pursuant to the Closings (as defined in the 2020 Series E Stock Purchase Agreement dated May 4, 2020, by and among the Company and the purchasers listed on Schedule I thereto, as amended by the Second Closing Agreement, dated as of the date of this Agreement, by and among the Company and the purchasers signatory thereto (collectively, the “2020 Series E Purchase Agreement”), provided that the aggregate number of shares of Series E Preferred Stock issued pursuant to the Second Closing (as defined in the 2020 Series E Purchase Agreement) prior to, on or after the date hereof does not exceed 2,764,708 shares. For purposes of this preemptive right, and except as provided in the next immediate sentence of this paragraph with in respect of the Prior Preferred Stock held by an Investor, each Investor’s “Pro-rata Portion” will be a fraction, the numerator of which is the number of shares of Common Stock held, or issuable upon conversion of the Preferred Stock held (assuming full conversion and exercise of all outstanding convertible or exercisable securities held by such Investor) by such Investor immediately prior to the issuance of the new Equity Securities, and the denominator of which is the total number of shares of Common Stock outstanding (assuming full conversion and exercise of all outstanding convertible or exercisable securities) immediately prior (i) without limiting the respective allocations of the Investors in respect of the Series F Preferred Stock held by them, the aggregate Pro-rata Portion of the Investors in respect of the Series D Preferred Stock held by them shall be equal to fifty percent (50%), which shall be allocated among such Investors according to their respective ownership of shares of Series D Preferred Stock, and (ii) without limiting their respective allocations as holders of Series D Preferred Stock under previous clause (i), as applicable, the Pro-rata Portion of the Investors in respect of the Prior Preferred Stock held by them will be equal to (x) the Pro-rata Portion of all Investors as calculated in the manner provided in the first sentence of this paragraph minus the Pro-rata Portion of the Investors in respect of the Series F Preferred Stock held by them as calculated in the manner provided in the first sentence of this paragraph minus fifty percent (50%) (the “Remaining Pro-rata Portion”), times (y) a fraction, the numerator of which is the number of shares of Common Stock held, or issuable upon conversion of the Prior Preferred Stock held (assuming full conversion and exercise of all outstanding convertible or exercisable securities held by such Investors) by such Investors immediately prior to the issuance of the new Equity Securities, and the denominator of which is the total number of shares of Common Stock outstanding (assuming full conversion and exercise of all outstanding convertible or exercisable securities) immediately prior to the issuance of the new Equity Securities, which shall be allocated among such Investors according to their respective ownership of shares of Prior Preferred Stock. For clarity, if the Remaining Pro-rata Portion is a negative percentage or zero in connection with a proposed offering of new Equity Securities and the proposed price of such Equity Securities is equal to or greater than the Original Series D Purchase Price, then: (x) the Pro-rata Portion of the Investors in respect of the Series F Preferred Stock held by them shall still be calculated in the manner provided in the first sentence of this paragraph; (y) the Investors shall not have preemptive rights in respect of the Prior Preferred Stock held by them with respect to that offering of Equity Securities; and (z) the Pro-rata Portion of the Investors in respect of the Series D Preferred Stock held by them shall be equal to the remaining Pro-rata Portion of all Investors.

Appears in 2 contracts

Samples: Investors’ Rights Agreement (Alkami Technology, Inc.), Investors’ Rights Agreement (Alkami Technology, Inc.)

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Grant of Preemptive Right. If the Company shall propose the issuance of issue any equity securities, options therefor or securities convertible or exercisable for equity securities (each an “Equity Security” and together, “Equity Securities”), each Major Investor that is an “Accredited Investor” (as such term is defined in Rule 501 of Regulaton D promulgated pursuant to the Securities Act of 1933, as amended) shall be entitled to purchase the such Major Investor’s Pro-rata Rata Portion (as defined below) of such Equity Securities to be issued; provided, however, that this contractual preemptive right shall not apply to issuances of Equity Securities: (ai) that are made pursuant to the Purchase Agreement; (b) , or upon conversion of any shares of Preferred StockStock issuable thereunder; (cii) to officers, directors upon the conversion or employees of, exercise of convertible or consultants exercisable securities or other service providers to, rights to purchase the Company Company’s capital stock outstanding as compensation for services, directly or pursuant to a stock option plan or an agreement approved by the Board of Directors (including the approval or consent of at least three of the Preferred Directors then in office)date of this Agreement; (d) to banks, savings and loan associations, equipment lessors or other similar lending institutions in connection with such entities providing working capital credit facilities or equipment financing to the Company pursuant to a plan or arrangement approved by the Board of Directors (including at least three of the Preferred Directors then in office); (e) pursuant to a transaction for which adjustments of the Conversion Price (as defined in the Certificate of Incorporation) are made pursuant to Subsection 4(d)(iii) of the Certificate of Incorporation; (fiii) as a dividend or distribution on Common Stock or Preferred Stock, all shares of Preferred Stock or to all stockholders shareholders of the Company generally, and as a result of which appropriate adjustment is made to the respective Conversion Prices conversion price of the Preferred Stock; (iv) pursuant to the sale of shares in an underwritten public offering; (v) to the Company’s or any subsidiary’s officers, directors, employees, consultants, advisors, placement agents and other service providers as compensation for services, or for charitable purposes, pursuant to stock grants, agreements, stock option plans, stock purchase plans, or other incentive programs or similar arrangements approved by the Board of Directors (including the Series B Director, Series C Director and Series D Director (as defined in the Certificate Company’s Third Amended and Restated Voting Agreement dated of Incorporation) of each series of Preferred Stockeven date herewith); (gvi) to banks, savings and loan associations, equipment lessors or other similar lending institutions pursuant to commercial credit arrangements, equipment financings, commercial property lease transactions, or similar transactions approved by the Board of Directors; (vii) pursuant to bona fide business or technology acquisitions (or licenses) of or by the CorporationCompany, whether by merger, consolidation, sale of assets, sale or exchange of stock stock, reorganization or otherwise, that otherwise which is approved by the Board of Directors (including the approval or consent of at least three Preferred Directors then in officeDirectors; (i) in, or after, a Qualified Public Offering; (hviii) pursuant to or in connection with sponsored research, collaboration, technology license, development, OEM, supply, marketing or other similar agreements or strategic partnerships approved by the Board of Directors (including at least three of the Preferred Directors then in office)Directors; (jix) any right, option or warrant to acquire any security convertible into or exercisable for a charitable purpose, provided that such grant has been approved by the Board of Directors securities listed in clauses (including the approval or consent of at least three Preferred Directors then in office); or i) through (kviii) pursuant to the Closings (as defined in the 2020 Series E Stock Purchase Agreement dated May 4, 2020, by and among the Company and the purchasers listed on Schedule I thereto, as amended by the Second Closing Agreement, dated as of the date of this Agreement, by and among the Company and the purchasers signatory thereto (collectively, the “2020 Series E Purchase Agreement”), provided that the aggregate number of shares of Series E Preferred Stock issued pursuant to the Second Closing (as defined in the 2020 Series E Purchase Agreement) prior to, on or after the date hereof does not exceed 2,764,708 sharesabove. For purposes of this preemptive right, and except as provided in the next immediate sentence of this paragraph with in respect of the Prior Preferred Stock held by an Investor, each Investor’s “Pro-rata Rata Portion” will be a fraction, the numerator of which is the number of shares of Common Stock held, or issuable upon conversion of the Preferred Stock held (assuming full conversion and exercise of all outstanding convertible or exercisable securities held by such Investor) by such Investor immediately prior to the issuance of the new Equity Securities, and the denominator of which is the total number of shares of Common Stock outstanding (assuming full conversion and exercise of all outstanding convertible or and exercisable securities) immediately prior (i) without limiting the respective allocations of the Investors in respect of the Series F Preferred Stock held by them, the aggregate Pro-rata Portion of the Investors in respect of the Series D Preferred Stock held by them shall be equal to fifty percent (50%), which shall be allocated among such Investors according to their respective ownership of shares of Series D Preferred Stock, securities and (ii) without limiting their respective allocations as holders of Series D Preferred Stock under previous clause (i), as applicable, the Pro-rata Portion of the Investors in respect of the Prior Preferred Stock held by them will be equal to (x) the Pro-rata Portion of including all Investors as calculated in the manner provided in the first sentence of this paragraph minus the Pro-rata Portion of the Investors in respect of the Series F Preferred Stock held by them as calculated in the manner provided in the first sentence of this paragraph minus fifty percent (50%) (the “Remaining Pro-rata Portion”), times (y) a fraction, the numerator of which is the number of shares of Common Stock held, or issuable reserved for issuance upon conversion or exercise of options, warrants and the like actually issued as of the Prior Preferred Stock held (assuming full conversion and exercise date of all outstanding convertible or exercisable securities held by such Investors) by such Investors immediately prior the Preemptive Rights Notice pursuant to the issuance of the new Equity Securities, Company’s stock option and the denominator of which is the total number of shares of Common Stock outstanding (assuming full conversion and exercise of all outstanding convertible or exercisable securitiesequity incentive plans) immediately prior to the issuance of new securities (the new Equity Securities, which shall be allocated among such Investors according to their respective ownership of shares of Prior Preferred Stock. For clarity, if the Remaining Pro-rata Portion is a negative percentage or zero in connection with a proposed offering of new Equity Securities and the proposed price of such Equity Securities is equal to or greater than the Original Series D Purchase Price, then: (x) the Pro-rata Portion of the Investors in respect of the Series F Preferred Stock held by them shall still be calculated in the manner provided in the first sentence of this paragraph; (y) the Investors shall not have preemptive rights in respect of the Prior Preferred Stock held by them with respect to that offering of Equity Securities; and (z) the Pro-rata Portion of the Investors in respect of the Series D Preferred Stock held by them shall be equal to the remaining Pro-rata Portion of all InvestorsRata Portion”).

Appears in 1 contract

Samples: Investors’ Rights Agreement (Whiteglove House Call Health Inc)

Grant of Preemptive Right. If the Company shall propose the issuance of issue any equity securities, options therefor or securities convertible into or exercisable for equity securities (each an “Equity Security” and together, “Equity Securities”), each Investor shall be entitled to purchase the Pro-rata Portion (as defined below) of such Equity Securities to be issued; provided, however, that this contractual preemptive right shall not apply to issuances of Equity Securities: (a) that are made pursuant to upon conversion of the Purchase AgreementPreferred Stock; (b) upon the exercise of the warrants or options outstanding as of the date hereof or the conversion of any the shares of Preferred StockStock issued pursuant to any such warrants; (c) pursuant to the conversion or exercise of convertible securities provided the issuance of the convertible securities was (i) approved by the Board of Directors; and (ii) subject to the preemptive rights granted herein; (d) to officers, directors or employees of, or consultants or other service providers to, the Company as compensation for services, directly or pursuant to a stock option plan or an agreement approved by the Board of Directors (including the approval or consent of at least three a majority of the Preferred Directors then in office); , (de) to banks, savings and loan associations, equipment lessors or other similar lending institutions in connection with such entities providing working capital credit facilities or equipment financing to the Company pursuant to a plan or arrangement approved by the Board of Directors (including at least three the approval or consent of a majority of the Preferred Directors then in office); (e) pursuant to a transaction for which adjustments of the Conversion Price (as defined in the Certificate of Incorporation) are made pursuant to Subsection 4(d)(iii) of the Certificate of Incorporation; (f) as a result of a stock split or dividend or distribution on Common Stock or Preferred Stock, Preferred Stock or to all stockholders of the Company generally, and as a result of which appropriate adjustment is made to the respective Conversion Prices (as defined in conversion price of the Certificate of Incorporation) of each series of Preferred Stock; (g) pursuant to approved by the Board of Directors (including the approval or consent of a majority of the Preferred Directors then in office) in connection with bona fide business or technology acquisitions (or licenses) of of, or by by, the CorporationCompany, whether by merger, consolidation, sale of assets, sale or exchange of stock reorganization stock, reorganization, or otherwise; (h) in, that is or after a Qualified Public Offering; (i) issued for charitable purposes and approved by the Board of Directors (including the approval or consent of at least three a majority of the Preferred Directors then in office); or (i) in, or after, a Qualified Public Offering; (hj) pursuant to or in connection with technology license, development, OEM, marketing or other similar agreements or strategic partnerships approved by the Board of Directors (including at least three the approval or consent of a majority of the Preferred Directors then in office); or (jk) to commercial lessors in connection with lease transactions for the Company’s offices pursuant to a charitable purpose, provided that such grant has been plan or arrangement approved by the Board of Directors (including the approval or consent of at least three a majority of the Preferred Directors then in office); or (k) pursuant to the Closings (as defined in the 2020 Series E Stock Purchase Agreement dated May 4, 2020, by and among the Company and the purchasers listed on Schedule I thereto, as amended by the Second Closing Agreement, dated as of the date of this Agreement, by and among the Company and the purchasers signatory thereto (collectively, the “2020 Series E Purchase Agreement”), provided that the aggregate number of shares of Series E Preferred Stock issued pursuant to the Second Closing (as defined in the 2020 Series E Purchase Agreement) prior to, on or after the date hereof does not exceed 2,764,708 shares. For purposes of this preemptive right, and except as provided in the next immediate sentence of this paragraph with in respect of the Prior Preferred Stock held by an Investor, each Investor’s “Pro-rata Portion” will be a fraction, (x) the numerator of which is the number of shares of Common Stock held, or issuable upon conversion of the Preferred Stock held (assuming full conversion and exercise of all outstanding convertible or exercisable securities held by such Investor) by such Investor immediately prior to the issuance of the new Equity Securities, and the denominator of which is the total number of shares of Common Stock outstanding (assuming full conversion and exercise of all outstanding convertible or exercisable securities) immediately prior (i) without limiting the respective allocations of the Investors in respect of the Series F Preferred Stock held by them, the aggregate Pro-rata Portion of the Investors in respect of the Series D Preferred Stock held by them shall be equal to fifty percent (50%), which shall be allocated among such Investors according to their respective ownership of shares of Series D Preferred Stock, and (ii) without limiting their respective allocations as holders of Series D Preferred Stock under previous clause (i), as applicable, the Pro-rata Portion of the Investors in respect of the Prior Preferred Stock held by them will be equal to (x) the Pro-rata Portion of all Investors as calculated in the manner provided in the first sentence of this paragraph minus the Pro-rata Portion of the Investors in respect of the Series F Preferred Stock held by them as calculated in the manner provided in the first sentence of this paragraph minus fifty percent (50%) (the “Remaining Pro-rata Portion”), times (y) a fraction, the numerator of which is the number of shares of Common Stock held, or issuable upon conversion of the Prior Preferred Stock held (assuming full conversion and exercise of all outstanding convertible or exercisable securities held by such Investors) by such Investors immediately prior to the issuance of the new Equity Securities, and the denominator of which is the total number of shares of Common Stock outstanding (assuming full conversion and exercise of all outstanding convertible or exercisable securities) immediately prior to the issuance of new securities (the new Equity Securities, which shall be allocated among such Investors according to their respective ownership of shares of Prior Preferred Stock. For clarity, if the Remaining Pro-rata Portion is a negative percentage or zero in connection with a proposed offering of new Equity Securities and the proposed price of such Equity Securities is equal to or greater than the Original Series D Purchase Price, then: (x) the Pro-rata Portion of the Investors in respect of the Series F Preferred Stock held by them shall still be calculated in the manner provided in the first sentence of this paragraph; (y) the Investors shall not have preemptive rights in respect of the Prior Preferred Stock held by them with respect to that offering of Equity Securities; and (z) the Pro-rata Portion of the Investors in respect of the Series D Preferred Stock held by them shall be equal to the remaining Pro-rata Portion of all InvestorsPortion”).

Appears in 1 contract

Samples: Investors’ Rights Agreement (Xeris Pharmaceuticals Inc)

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Grant of Preemptive Right. If the Company shall propose the issuance of issue any equity securities, options therefor or securities convertible or exercisable for equity securities (each an “Equity Security” and together, “Equity Securities”), each Investor shall be entitled to purchase the Pro-rata Portion (as defined below) of such Equity Securities to be issued; provided, however, that this contractual preemptive right shall not apply to issuances of Equity Securities: (a) that are made pursuant to upon the Purchase Agreement; (b) upon conversion of any shares of the Preferred Stock; (cb) to officers, directors or employees of, or consultants or other service providers to, the Company Corporation as compensation for services, directly or pursuant to a stock option plan or an agreement equity incentive plans approved by the Board of Directors (including to the approval or consent of at least three extent included in the equity incentive pool immediately prior to the sale of the Series C Preferred Directors then in office)Stock and, to the extent the pool is increased after the sale of the Series C Preferred Stock; (dc) to banks, savings and loan associations, equipment lessors or other similar lending financial institutions or lessors in connection with such entities providing working capital commercial credit facilities arrangements, equipment financings, commercial property lease transactions, or equipment financing similar transactions to the Company pursuant to a plan or arrangement Corporation approved by the Board of Directors (including at least three of the Preferred Directors then in office)Directors; (ed) pursuant to a transaction for which adjustments of the Conversion Price (as defined in the Certificate of Incorporation) are made pursuant to Subsection 4(d)(iii) of the Certificate of Incorporation; (f) as a dividend or distribution on Common Stock or Preferred Stock, or to all stockholders of the Company generally, and as a result of which appropriate adjustment is made to the respective Conversion Prices (as defined in the Certificate of Incorporation) of each series of Preferred Stock; (g) pursuant to bona fide business or technology acquisitions (or licenses) of or by the Corporation, whether by merger, consolidation, sale of assets, sale or exchange of stock reorganization or otherwise, that is approved by the Board of Directors (including the approval or consent of at least three Preferred Directors then in office; (i) in, or after, a Qualified Public Offering; (h) pursuant to or in connection with technology licensepermitted business acquisitions, development, OEM, marketing or other similar agreements mergers or strategic partnerships approved by the Board of Directors (including at least three of the Preferred Directors then in office)Directors; (je) pursuant to any stock splits, stock dividends, reverse stock splits, stock combinations and other similar capitalization changes for a charitable purpose, provided that such grant has been approved by the Board of Directors which appropriate adjustment is made hereunder; (including the approval or consent of at least three Preferred Directors then in office); or (kf) pursuant to the Closings (as defined in issuance of securities upon the 2020 Series E Stock Purchase Agreement dated May 4, 2020, by exercise of options and among convertible securities or rights exercisable to purchase the Company and the purchasers listed on Schedule I thereto, as amended by the Second Closing Agreement, dated Corporation’s capital stock that were outstanding as of the date of this Agreement, by and among the Company and the purchasers signatory thereto hereof; or (collectively, the “2020 Series E Purchase Agreement”), provided that the aggregate number of shares of Series E Preferred Stock issued g) pursuant to the Second Closing (issuance of shares as defined to which the holders of a majority of the outstanding shares of Preferred Stock have waived the application of this Section 3.1(a) in the 2020 Series E Purchase Agreement) prior to, on or after the date hereof does not exceed 2,764,708 shareswriting. For purposes of this preemptive right, and except as provided in the next immediate sentence of this paragraph with in respect of the Prior Preferred Stock held by an Investor, each Investor’s “Pro-rata Portion” will be a fraction, the numerator of which is the number of shares of Common Stock held, or issuable upon conversion of the Preferred Stock held (assuming full conversion and exercise of all outstanding convertible or exercisable securities held by such Investor) by such Investor immediately prior to the issuance of the new Equity Securities, and the denominator of which is the total number of shares of Common Stock outstanding (assuming full conversion and exercise of all outstanding convertible or exercisable securities) immediately prior (i) without limiting the respective allocations of the Investors in respect of the Series F Preferred Stock held by them, the aggregate Pro-rata Portion of the Investors in respect of the Series D Preferred Stock held by them shall be equal to fifty percent (50%), which shall be allocated among such Investors according to their respective ownership of shares of Series D Preferred Stock, and (ii) without limiting their respective allocations as holders of Series D Preferred Stock under previous clause (i), as applicable, the Pro-rata Portion of the Investors in respect of the Prior Preferred Stock held by them will be equal to (x) the Pro-rata Portion of all Investors as calculated in the manner provided in the first sentence of this paragraph minus the Pro-rata Portion of the Investors in respect of the Series F Preferred Stock held by them as calculated in the manner provided in the first sentence of this paragraph minus fifty percent (50%) (the “Remaining Pro-rata Portion”), times (y) a fraction, the numerator of which is the number of shares of Common Stock held, or issuable upon conversion of the Prior Preferred Stock held (assuming full conversion and exercise of all outstanding convertible or exercisable securities held by such Investors) by such Investors immediately prior to the issuance of the new Equity Securities, and the denominator of which is the total number of shares of Common Stock outstanding (assuming full conversion and exercise of all outstanding convertible or exercisable securities) immediately prior to the issuance of the new Equity Securities, which shall be allocated among such Investors according to their respective ownership of shares of Prior Preferred Stock. For clarity, if the Remaining Pro-rata Portion is a negative percentage or zero in connection with a proposed offering of new Equity Securities and the proposed price of such Equity Securities is equal to or greater than the Original Series D Purchase Price, then: (x) the Pro-rata Portion of the Investors in respect of the Series F Preferred Stock held by them shall still be calculated in the manner provided in the first sentence of this paragraph; (y) the Investors shall not have preemptive rights in respect of the Prior Preferred Stock held by them with respect to that offering of Equity Securities; and (z) the Pro-rata Portion of the Investors in respect of the Series D Preferred Stock held by them shall be equal to the remaining Pro-rata Portion of all Investorssecurities.

Appears in 1 contract

Samples: Investors’ Rights Agreement (WORTHPOINT Corp)

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