Pre-emptive Rights. (a) Each Stockholder (for the purpose of this Section 7, each a “Pre-Emptive Right Holder”) shall have the right to purchase such Pre-Emptive Right Holder’s Overall Percentage Interest (for the purpose of this Section 7 the “Pre-Emptive Allocation”), or any lesser number, of any new shares of Common Stock, or any other equity securities of the Company, including securities convertible into, exercisable for, or exchangeable for Common Stock, that the Company may, from time to time, propose to sell and issue, in each case, other than Excluded Securities and securities issued in connection with stock splits, stock dividends, in-kind equity distributions and recapitalizations (collectively, “New Securities”). (b) In the event the Company proposes to undertake an issuance of New Securities, it will give each Pre-Emptive Right Holder written notice of such issuance (which notice shall be delivered at least fifteen (15) days prior to such issuance), describing the New Securities and the price and terms upon which the Company proposes to issue the same, and setting forth the number of shares or other number of New Securities which such Stockholder is entitled to purchase pursuant to such Stockholder’s Pre-Emptive Allocation and the aggregate purchase price therefor. Each Pre-Emptive Right Holder will have ten (10) days from the date of delivery of any such notice from the Company to agree to purchase a specified portion of such New Securities up to such Stockholder’s Pre-Emptive Allocation, or any lesser number, for the price and upon the terms specified in the notice (provided that the Pre-Emptive Right Holders shall be entitled to pay cash in lieu of any non-cash consideration) by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If not all of the Pre-Emptive Right Holders elect to purchase their full Pre-Emptive Allocation of New Securities, then the Company shall notify in writing the fully-participating Pre-Emptive Right Holders of such and offer such holders the right to acquire such unsubscribed New Securities. Each fully-participating Pre-Emptive Right Holder so notified shall have the right to purchase its pro rata share of the unsubscribed New Securities (in proportion to the Overall Percentage Interests of all fully participating Pre-Emptive Right Holders) within five (5) days from the date of such notice from the Company by giving written notice to the Company and stating therein the quantity of unsubscribed New Securities to be purchased. (c) In the event any Pre-Emptive Right Holder fails to exercise such right of first refusal within said ten (10) day period (or, as applicable, such 15-day period), the Company will have seventy five (75) days thereafter to sell the New Securities as to which such Pre-Emptive Right Holder’s right was not exercised, at a price and upon such other terms no more favorable to the purchasers thereof than those specified in the Company’s notice. In the event the Company has not sold such New Securities within said seventy five (75)-day period, the Company will not thereafter issue or sell any New Securities without first offering such New Securities to each Pre-Emptive Rights Holder in the manner provided above. (d) The pre-emptive rights granted by this Section 7 shall be exercisable only by “accredited investors” as defined under Section 501 of Regulation D of the Securities Act. (e) The closing of any sale of New Securities shall be on the date set forth in the notice provided by the Company pursuant to Section 7(b); provided, that such date shall be extended as to any participating Pre-Emptive Right Holder for up to forty (40) days (or such longer period as may be approved by the Company, which approval shall not be unreasonably delayed or withheld) for purposes of obtaining any necessary approvals from Governmental Authorities. The exercise or non-exercise of the rights of the Pre-Emptive Right Holders under this Section 7 shall not adversely affect their rights to participate in subsequent offerings of New Securities subject to Section 7.
Appears in 1 contract
Pre-emptive Rights. From the Closing Date until the later of (a) Each Stockholder January 11, 2010 or (for b) the purpose date on which less than that number of shares of Series B Preferred Stock that is equal to 50% of the Shares issued at the Closing remain outstanding, the Company shall not directly or indirectly, offer, sell or grant any option to purchase (or announce any offer, sale, grant or any option to purchase or other disposition of) any Common Stock, Options or Convertible Securities (any such offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”) unless the Company shall have first complied with this Section 74.10.
(a) The Company shall deliver, at least ten (10) business days prior to the closing of a Subsequent Placement, to each a Purchaser then holding at least the number of shares of Series B Preferred Stock that is equal to 50% of the Shares initially issued to such Purchaser at the Closing (an “Pre-Emptive Right Holder”) shall have the right to purchase such Pre-Emptive Right Holder’s Overall Percentage Interest (for the purpose of this Section 7 the “Pre-Emptive AllocationEligible Purchaser”), or any lesser number, a written notice (the “Offer Notice”) of any new proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, and (C) offer to issue and sell to or exchange with such Eligible Purchasers 50% of the Offered Securities, allocated among such Eligible Purchasers (a) based on such Eligible Purchaser’s pro rata portion of the aggregate principal amount of shares of Common StockSeries B Preferred Stock then held by all Eligible Purchasers (the “Basic Amount”), or and (b) with respect to each Eligible Purchaser that elects to purchase its Basic Amount, any other equity securities additional portion of the Company, including securities convertible into, exercisable for, Offered Securities attributable to the Basic Amounts of other Eligible Purchasers as such Eligible Purchaser shall indicate it will purchase or exchangeable acquire should the other Eligible Purchasers subscribe for Common Stock, that less than their Basic Amounts (the Company may, from time to time, propose to sell and issue, in each case, other than Excluded Securities and securities issued in connection with stock splits, stock dividends, in-kind equity distributions and recapitalizations (collectively, “New SecuritiesUndersubscription Amount”).
(b) In the event the Company proposes to undertake To accept an issuance of New SecuritiesOffer, it will give each Pre-Emptive Right Holder written notice of in whole or in part, such issuance (which notice shall be delivered at least fifteen (15) days prior to such issuance), describing the New Securities and the price and terms upon which the Company proposes to issue the same, and setting forth the number of shares or other number of New Securities which such Stockholder is entitled to purchase pursuant to such Stockholder’s Pre-Emptive Allocation and the aggregate purchase price therefor. Each Pre-Emptive Right Holder will have ten (10) days from the date of delivery of any such notice from the Company to agree to purchase Eligible Purchaser must deliver a specified portion of such New Securities up to such Stockholder’s Pre-Emptive Allocation, or any lesser number, for the price and upon the terms specified in the notice (provided that the Pre-Emptive Right Holders shall be entitled to pay cash in lieu of any non-cash consideration) by giving written notice to the Company and stating therein prior to the quantity end of New Securities the 10th business day after such Eligible Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Eligible Purchaser’s Basic Amount that such Eligible Purchaser elects to be purchasedpurchase and, if such Eligible Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Eligible Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If not the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Pre-Emptive Right Holders elect Basic Amounts, then each Eligible Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Eligible Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase their full Pre-Emptive Allocation only that portion of New Securitiesthe Available Undersubscription Amount as the Basic Amount of such Eligible Purchaser bears to the total Basic Amounts of all Eligible Purchasers that have subscribed for Undersubscription Amounts, then subject to rounding by the Company shall notify in writing the fully-participating Pre-Emptive Right Holders of such and offer such holders the right to acquire such unsubscribed New Securities. Each fully-participating Pre-Emptive Right Holder so notified shall have the right to purchase its pro rata share of the unsubscribed New Securities (in proportion to the Overall Percentage Interests of all fully participating Pre-Emptive Right Holders) within five (5) days from the date of such notice from the Company by giving written notice to the Company and stating therein the quantity of unsubscribed New Securities to be purchasedextent its deems reasonably necessary.
(c) In the event any Pre-Emptive Right Holder fails to exercise such right of first refusal within said ten The Company shall have thirty (10) day period (or, as applicable, such 15-day period), the Company will have seventy five (7530) days thereafter from the expiration of the Offer Period above to offer, issue, sell the New or exchange all or any part of such Offered Securities as to which such Pre-Emptive Right Holder’s right was a Notice of Acceptance has not exercisedbeen given by the Eligible Purchasers (the “Refused Securities”), at a price but only upon terms and upon such other terms no conditions (including, without limitation, the total amount of the financing, unit prices and interest rates) that are not more favorable to the purchasers thereof acquiring person or persons or less favorable to the Company than those specified set forth in the Company’s notice. In the event the Company has not sold such New Securities within said seventy five (75)-day period, the Company will not thereafter issue or sell any New Securities without first offering such New Securities to each Pre-Emptive Rights Holder in the manner provided aboveOffer Notice.
(d) The pre-emptive rights granted by this Section 7 shall be exercisable only by “accredited investors” as defined under Section 501 of Regulation D Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Eligible Purchasers shall acquire from the Company, and the Company shall issue to the Purchasers, the number or amount of Offered Securities Actspecified in the Notices of Acceptance, as reduced pursuant to Section 4.10(c) above if the Purchasers have so elected, upon the terms and conditions specified in the Offer.
(e) Any Offered Securities not acquired by the Eligible Purchasers or other persons in accordance with Section 4.10(c) above may not be issued, sold or exchanged until they are again offered to the Eligible Purchasers under the procedures specified in this Agreement.
(f) The closing restrictions contained in this Section 4.10 shall not apply to the issuance of any sale Common Stock issued or issuable: (i) under any Approved Stock Plan; or (ii) upon conversion of New Securities shall be on the date set forth in Convertible Promissory Notes or the notice provided by exercise of the Company pursuant to Section 7(b); provided, that such date shall be extended as to Warrants. “Approved Stock Plan” means any participating Pre-Emptive Right Holder for up to forty (40) days (or such longer period as may be employee benefit plan which has been approved by the Company, which approval shall not be unreasonably delayed or withheld) for purposes Board of obtaining any necessary approvals from Governmental Authorities. The exercise or non-exercise Directors and stockholders of the rights Company prior to the date of this Agreement and as amended hereafter solely consistent with Section 4.14, pursuant to which the Pre-Emptive Right Holders under this Section 7 shall not adversely affect their rights Company’s securities may be issued to participate in subsequent offerings of New Securities subject any employee, officer or director for services provided to Section 7the Company.
Appears in 1 contract
Samples: Series B Preferred Stock and Warrant Purchase Agreement (Alteon Inc /De)
Pre-emptive Rights. (a) Each Stockholder If (and, for greater certainty, every time) the purpose Corporation proposes to issue, grant or sell any securities, the Corporation shall first give to the Investor, on behalf of this Section 7the Investor and its affiliates, each a “written notice setting forth in reasonable detail the price and other terms on which such securities are proposed to be issued or sold, the terms of any such securities and the amount thereof proposed to be issued, granted or sold. The Investor and its affiliates shall thereafter have the pre-emptive right (the "Pre-emptive Right"), exercisable by written notice to the Corporation no later than fifteen (15) Business Days after the Corporation's notice is given, to purchase any or all of such securities as the Investor and its affiliates set forth in such notice (provided that if the Investor and its affiliates wish to exercise the Pre-emptive Right in respect of greater than 75% of the securities subject thereto, the Pre-Emptive Right Holder”) shall have must be exercised for 100% of such securities), at the right price and on the other terms set forth in the Corporation's notice. Any notice by the Investor and its affiliates exercising the Pre-emptive Right to purchase securities shall constitute a commitment to purchase from the Corporation the securities specified in such notice, subject only to obtaining any necessary regulatory approvals. If the Investor and its affiliates exercise the Preemptive Right to the full extent and thereby commits to purchase all of the securities proposed to be issued, granted or sold by the Corporation, then the closing of the purchase of securities by the Investor and its affiliates shall take place on such date, no less than ten (10) and no more than fifteen (15) Business Days after the expiration of the fifteen (15) Business Day period referred to above (or, if all necessary regulatory approvals have not been obtained or received upon the expiry of such period, then such period shall be extended until such time as all necessary regulatory approvals have been obtained or received), as the Corporation may select, and the Corporation shall notify the Investor on behalf of the Investor and its affiliates of such closing at least five (5) Business Days prior thereto. If the Investor and its affiliates do not exercise the Pre-Emptive emptive Right Holder’s Overall Percentage Interest (for to the purpose full extent and thereby commit to purchase less than all of this Section 7 the “securities proposed to be issues, granted or sold by the Corporation or do not exercise the Pre-Emptive Allocation”)emptive Right in any way, and the Corporation proposes to issue, grant or any lesser numbersell securities to persons other than the Investor and its affiliates, of any new shares of Common Stock, or any other equity securities then the closing of the Companypurchase of such securities shall take place at the same time as the reasonable closing of such issuance, including securities convertible intogrant or sale (or, exercisable for, if all necessary regulatory approvals have not been obtained or exchangeable for Common Stock, that the Company may, from time to received at such time, propose to sell and issue, in each case, other than Excluded Securities and securities issued in connection with stock splits, stock dividends, in-kind equity distributions and recapitalizations then five (collectively, “New Securities”5) Business Days following all necessary regulatory approvals being obtained or received).
(b) In If not all securities proposed to be issued, granted or sold are purchased pursuant to Section 4.1(a), the event Corporation shall use commercially reasonable efforts to issue, grant or sell the Company proposes remaining subject securities on the terms set forth in its notice to undertake an issuance the Investor, unless the Board of New Securities, it will give each Pre-Emptive Right Holder written notice Directors determines in good faith that the remaining number or amount is too small to be reasonably sold. From the expiration of such issuance (which notice shall be delivered at least the fifteen (15) days prior Business Day period first referred to in Section 4.1(a) and for a period of forty-five (45) Business Days thereafter, the Corporation may offer, issue, grant and sell (for greater certainty, the closing of such sale to take place within such forty-five (45) Business Day period) to any person or entity securities having the terms set forth in the Corporation's notice relating to such issuance), describing the New Securities and the securities at a price and on other terms upon which no less favourable to the Company proposes to issue the same, and setting Corporation than those set forth the number of shares or other number of New Securities which such Stockholder is entitled to purchase pursuant to such Stockholder’s Pre-Emptive Allocation and the aggregate purchase price therefor. Each Pre-Emptive Right Holder will have ten (10) days from the date of delivery of any in such notice from (without deduction for reasonable underwriting, sales agency and similar fees payable in connection therewith); provided, however, that the Company Corporation may not issue, grant or sell securities in an amount greater than the amount set forth in such notice minus the amount purchased or committed to agree to purchase a specified portion be purchased by the Investor. For greater certainty, following the expiry of such New Securities up to such Stockholder’s Preforty-Emptive Allocationfive (45) Business Day period, or any lesser number, for the price and upon the terms specified in the notice (provided that the Pre-Emptive emptive Right Holders shall be entitled again apply to pay cash in lieu any and each issue, grant or sale of any non-cash consideration) securities by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If not all of the Pre-Emptive Right Holders elect to purchase their full Pre-Emptive Allocation of New Securities, then the Company shall notify in writing the fully-participating Pre-Emptive Right Holders of such and offer such holders the right to acquire such unsubscribed New Securities. Each fully-participating Pre-Emptive Right Holder so notified shall have the right to purchase its pro rata share of the unsubscribed New Securities (in proportion to the Overall Percentage Interests of all fully participating Pre-Emptive Right Holders) within five (5) days from the date of such notice from the Company by giving written notice to the Company and stating therein the quantity of unsubscribed New Securities to be purchasedCorporation.
(c) In Notwithstanding the event any foregoing provisions of this Section 4.1, the Pre-Emptive emptive Right Holder fails shall not apply in respect of: (i) issuances of securities in the ordinary course of business pursuant to exercise such right the Employee Option Plan, (ii) issuances of first refusal within said ten securities pursuant to the Outstanding Rights, including under the provisions attaching to the Series One Preferred Share of the Corporation or the CIBC Debenture (10) day period (or, as applicable, such 15-day periodmodified by the Consent and Amending Agreement), the Company will have seventy five or (75iii) days thereafter to sell the New Securities as to which such Pre-Emptive Right Holder’s right was not exercised, at a price and upon such other terms no more favorable issuances of securities pursuant to the purchasers thereof than those specified in exercise of rights to acquire such securities granted or issued after the Company’s notice. In date hereof with the event the Company has not sold such New Securities within said seventy five (75)-day period, the Company will not thereafter issue or sell any New Securities without first offering such New Securities to each Pre-Emptive Rights Holder in the manner provided above.
(d) The pre-emptive rights granted by this Section 7 shall be exercisable only by “accredited investors” as defined under Section 501 of Regulation D consent of the Securities Act.
(e) The closing of any sale of New Securities shall be on the date set forth in the notice provided by the Company Investor pursuant to Section 7(b7.1(d); provided, that such date shall be extended as to any participating Pre-Emptive Right Holder for up to forty (40) days (or such longer period as may be approved by the Company, which approval shall not be unreasonably delayed or withheld) for purposes of obtaining any necessary approvals from Governmental Authorities. The exercise or non-exercise of the rights of the Pre-Emptive Right Holders under this Section 7 shall not adversely affect their rights to participate in subsequent offerings of New Securities subject to Section 7.
Appears in 1 contract
Samples: Investor's Rights Agreement (Points International LTD)
Pre-emptive Rights. (a) After the date hereof, if the Company authorizes the issuance or sale to the Investors of any Securities (as defined in the LLC Agreement), the Company shall offer to sell to each holder of Common Units (other than the Investors) (the "OTHER COMMON UNITHOLDERS"), at the same price and on the same terms, a portion of such Securities equal to the quotient determined by dividing (1) the number of Common Units held by such Other Common Unitholder (which shall include only Carried Common held by such Other Common Unitholder, if any, if such Other Common Unitholder is employed by the Company or its Subsidiaries as of the date of such event) by (2) the total number of Common Units outstanding (which shall include only Carried Common held by Other Common Unitholders, if any, who are employed by the Company or its Subsidiaries as of the date of such event), in each case on a fully diluted basis. Each Stockholder (for the purpose of this Section 7, each a “Pre-Emptive Right Holder”) Other Common Unitholder shall have the right be entitled to purchase such Pre-Emptive Right Holder’s Overall Percentage Interest (for Securities at the purpose most favorable price and on the most favorable terms as such Securities are to be offered to the Investors; PROVIDED that if the Investors purchase Securities of this Section 7 the “Pre-Emptive Allocation”), Company or any lesser numberof its Subsidiaries after the date hereof, the Other Common Unitholders exercising their rights pursuant to this SECTION 5 shall also be required to purchase the same strip of any new shares of Common Stock, or any other equity securities of Securities (on the Company, including securities convertible into, exercisable for, or exchangeable for Common Stock, same terms and conditions) that the Company may, from time to time, propose to sell and issue, in each case, other than Excluded Securities and securities issued in connection with stock splits, stock dividends, in-kind equity distributions and recapitalizations (collectively, “New Securities”)Investors purchase.
(b) In the event the Company proposes order to undertake an issuance of New Securitiesexercise its purchase rights hereunder, it will give each Pre-Emptive Right Holder written notice of such issuance Other Common Unitholder must within thirty (which notice shall be delivered at least fifteen (1530) days prior to such issuance), describing the New Securities and the price and terms upon which the Company proposes to issue the same, and setting forth the number after receipt of shares or other number of New Securities which such Stockholder is entitled to purchase pursuant to such Stockholder’s Pre-Emptive Allocation and the aggregate purchase price therefor. Each Pre-Emptive Right Holder will have ten (10) days from the date of delivery of any such written notice from the Company to agree to describing in reasonable detail the units or securities being offered, the purchase price thereof, the payment terms and such Other Common Unitholder's percentage allotment, deliver a specified portion of such New Securities up to such Stockholder’s Pre-Emptive Allocation, or any lesser number, for the price and upon the terms specified in the notice (provided that the Pre-Emptive Right Holders shall be entitled to pay cash in lieu of any non-cash consideration) by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If not all of the Pre-Emptive Right Holders elect to purchase their full Pre-Emptive Allocation of New Securities, then the Company shall notify in writing the fully-participating Pre-Emptive Right Holders of such and offer such holders the right to acquire such unsubscribed New Securities. Each fully-participating Pre-Emptive Right Holder so notified shall have the right to purchase describing its pro rata share of the unsubscribed New Securities (in proportion to the Overall Percentage Interests of all fully participating Pre-Emptive Right Holders) within five (5) days from the date of such notice from the Company by giving written notice to the Company and stating therein the quantity of unsubscribed New Securities to be purchasedelection hereunder.
(c) In Upon the event any Pre-Emptive Right Holder fails to exercise such right expiration of first refusal within said ten (10) day the offering period (or, as applicable, such 15-day period)described above, the Company will have seventy five (75) days thereafter shall be entitled to sell such units or securities which the New Securities as Other Common Unitholders have not elected to which purchase during the 90 days following such Pre-Emptive Right Holder’s right was not exercised, at a price expiration on terms and upon such other terms conditions no more favorable to the purchasers thereof Investors than those specified in the Company’s noticeoffered to such holders. In the event Any such securities offered or sold by the Company has not sold after such New Securities within said seventy five (75)-day period, 90-day period must be offered to the Company will not thereafter issue or sell any New Securities without first offering such New Securities Other Common Unitholders pursuant to each Pre-Emptive Rights Holder in the manner provided aboveterms of this SECTION 5.
(d) The pre-emptive Notwithstanding the foregoing, the rights granted by set forth in this Section 7 SECTION 5 shall be exercisable only by “accredited investors” not apply to issuances of equity securities (or securities convertible into or exchangeable for, or options to purchase, such equity securities), pro rata to all holders of Common, as defined under Section 501 a dividend on, subdivision of Regulation D of or other distribution in respect of, the Securities ActCommon in accordance with the LLC Agreement.
(e) The closing of any sale of New Securities shall be on the date rights set forth in this SECTION 5 shall continue with respect to each Common Unit until the notice provided by earlier of (i) the transfer of such Common Unit in a Public Sale, or (ii) the consummation of a Sale of the Company pursuant to Section 7(b); provided, that such date shall be extended as to any participating Pre-Emptive Right Holder for up to forty (40) days (or such longer period as may be approved by the Company, which approval shall not be unreasonably delayed or withheld) for purposes of obtaining any necessary approvals from Governmental Authorities. The exercise or non-exercise of the rights of the Pre-Emptive Right Holders under this Section 7 shall not adversely affect their rights to participate in subsequent offerings of New Securities subject to Section 7a Public Offering.
Appears in 1 contract
Pre-emptive Rights. (a) Each Stockholder For so long as Telstra Shareholder Group beneficially owns any Class B Ordinary Shares or Orchid Shareholder Group beneficially owns in the aggregate at least 5% of the issued and outstanding shares in the capital of the Company, at any time the Company proposes to issue any Ordinary Shares, or securities convertible into or exercisable or exchangeable for Ordinary Shares of the Company other than (for i) pursuant to any present or future employee, director or consultant benefit plans or programs of the purpose Company that has been duly approved by the shareholders of this Section 7the Company and the issuance of any Ordinary Shares issuable upon exercise of such equity awards under any such plans, each (ii) the issuance of Class A Ordinary Shares upon conversion of the Class B Ordinary Shares, or (iii) upon a stock split, stock dividend or any subdivision of the Ordinary Shares (the “New Securities”), the Company shall notify the Telstra Shareholder Group and the Orchid Shareholder Group (collectively, the “Pre-Emptive Right Holderemptive Shareholders” and individually, the “Pre-emptive Shareholder”) in writing of such proposal (an “Issue Notice”). The Issue Notice shall specify the number and type of New Securities to be offered by the Company and the material terms of the proposed offer (including the proposed price or range of prices per New Security and other material conditions), as well as a statement that the pre-emptive rights are available to Telstra Shareholder Group. Such Issue Notice should be provided to the Pre-emptive Shareholders prior to any filing with any regulatory authority or any public disclosure.
(b) The Pre-emptive Shareholders shall have the right to purchase such Pre-Emptive Right Holder’s Overall Percentage Interest (for the purpose of this Section 7 the “Pre-Emptive Allocation”), or any lesser number, of any new shares of Common Stock, or any other equity securities of the Company, including securities convertible into, exercisable for, or exchangeable for Common Stock, that the Company may, from time to time, propose to sell and issue, in each case, other than Excluded Securities and securities issued in connection with stock splits, stock dividends, in-kind equity distributions and recapitalizations (collectively, “New Securities”).
(b) In the event the Company proposes to undertake an issuance of New Securities, it will give each Pre-Emptive Right Holder written notice of such issuance (which notice shall be delivered at least fifteen (15) days prior to such issuance), describing the New Securities and the price and terms upon which the Company proposes to issue the same, and setting forth the number of shares or other number of New Securities which at such Stockholder is entitled to purchase pursuant to such Stockholder’s Pre-Emptive Allocation and the aggregate purchase price therefor. Each emptive Shareholder’s election, so as to enable such Pre-Emptive Right Holder will have ten (10) days from emptive Shareholder to beneficially hold, after the date issuance of delivery the New Securities which are the subject to the Issue Notice, a pro rata portion of any such notice from the New Securities equal to the percentage of the issued and outstanding share capital of the Company to agree to purchase a specified portion of then beneficially owned by such New Securities up to such Stockholder’s Pre-Emptive Allocationemptive Shareholder prior to the issuance of the New Securities, or any lesser number, for the price and upon the same terms specified and conditions set forth in the notice (provided that the Pre-Emptive Right Holders shall be entitled to pay cash in lieu of any non-cash consideration) Issue Notice, by giving written notice to the Company and stating therein of the quantity exercise of New Securities to be purchasedthis right within twenty (20) Business Days of such Pre-emptive Shareholder’s receipt of the Issue Notice. If such notice is not all of the given by a Pre-Emptive Right Holders elect to purchase their full emptive Shareholder within such twenty (20) Business Days thereof, such Pre-Emptive Allocation of New Securities, then the Company emptive Shareholder shall notify in writing the fully-participating Pre-Emptive Right Holders of such and offer such holders the right be deemed to acquire such unsubscribed New Securities. Each fully-participating Pre-Emptive Right Holder so notified shall have the right elected not to purchase its pro rata share of the unsubscribed New Securities (in proportion exercise their rights under this Section 4.1 with respect to the Overall Percentage Interests of all fully participating Pre-Emptive Right Holders) within five (5) days from the date of such notice from the Company by giving written notice to the Company and stating therein the quantity of unsubscribed New Securities to be purchasedissuance described in that specific Issue Notice.
(c) In If the event any Pre-Emptive Right Holder fails emptive Shareholders exercises their rights provided in this Section 4.1, the closing of the purchase of the New Securities with respect to exercise which such right has been exercised shall take place (X) in the case of first refusal within said any public offering or a Rule 144A offering, concurrently with the closing of such offering, or (Y) in the case of any other private offering, concurrently with the closing of such private offering, provided that the closing of such private offering should occur no sooner than ten (10) day period (orBusiness Days after such Pre-emptive Shareholder giving notice of such exercise. The Company and such Pre-emptive Shareholder exercising their rights under Section 4.1 will use commercially reasonable efforts to secure any regulatory or shareholder approvals or other consents, as applicableand to comply with any Law necessary in connection with the offer, sale and purchase of, such 15New Securities.
(d) In the event that the Pre-day emptive Shareholders fails to exercise their right provided in this Section 4.1 within such twenty (20) Business Day period), or in the event that such Pre-emptive Shareholder fails to consummate its transaction within the requisite period set forth in subsection (c) above, the Company will have seventy five shall thereafter be entitled to issue and sell within ninety (7590) days thereafter to sell Business Days the New Securities as not elected to which be purchased pursuant to this Section 4.1 by such Pre-Emptive Right Holder’s right was not exercised, emptive Shareholder at a price no less than that offered to the Pre-emptive Shareholders, and otherwise upon such other terms and conditions no more favorable to the any third-party purchasers thereof of such securities than those were specified in the Company’s noticeIssue Notice. Notwithstanding the foregoing, if such issuance or sale is subject to the receipt of any regulatory or shareholder approval or consent or the expiration of any waiting period, the time period during which such issuance or sale may be consummated shall be extended until the expiration of ten (10) Business Days after all such approvals or consents have been obtained or waiting periods expired. In the event the Company has not issued and sold such the New Securities within said seventy five such ninety (75)-day period90) Business Day period (as such period may be extended in the manner described in the preceding sentence), the Company will shall not thereafter offer, issue or sell such or any other New Securities without first offering such New Securities securities to each the Pre-Emptive Rights Holder emptive Shareholders in the manner provided above.
(d) The pre-emptive rights granted by in this Section 7 shall be exercisable only by “accredited investors” as defined under Section 501 of Regulation D of the Securities Act4.1 .
(e) The closing In the case of any sale the offering of New Securities for a consideration in whole or in part other than cash, including securities acquired in exchange therefor (other than securities by their terms so exchangeable), the consideration other than cash shall be on deemed to be the date set forth fair value thereof as determined in the notice provided good faith by the Company pursuant to Section 7(b)Board of Directors; provided, however, that such date shall be extended fair value as to any participating Pre-Emptive Right Holder for up to forty (40) days (or such longer period as may be approved determined by the Company, which approval Board of Directors shall not be unreasonably delayed or withheld) for purposes of obtaining any necessary approvals from Governmental Authorities. The exercise or non-exercise exceed the aggregate market price of the rights securities being offered as of the Pre-Emptive Right Holders under this Section 7 shall not adversely affect their rights to participate in subsequent offerings date the Board of New Securities subject to Section 7Directors authorizes the offering of such securities.
Appears in 1 contract
Pre-emptive Rights. (a) Each Stockholder If the Company authorizes the issuance and sale of Additional Shares, then, subject to SECTION 9(f) herein, the Company will offer to sell (for the purpose "Offer") to each Shareholder, and each such Shareholder may elect to purchase, up to that number of this Section 7Additional Shares, such that following such purchase, each such Shareholder is able to maintain the same percentage ownership (on a “Prefully-Emptive Right Holder”diluted basis) shall have of Shareholder Shares which each such Shareholder owned immediately prior to the right to purchase such Pre-Emptive Right Holder’s Overall Percentage Interest (for the purpose offer of this Section 7 the “Pre-Emptive Allocation”), or any lesser number, of any new shares of Common Stock, or any other equity securities of the Company, including securities convertible into, exercisable for, or exchangeable for Common Stock, that the Company may, from time to time, propose to sell and issue, in each case, other than Excluded Securities and securities issued in connection with stock splits, stock dividends, in-kind equity distributions and recapitalizations (collectively, “New Securities”)Additional Shares.
(b) In the event the The Company proposes to undertake an issuance of New Securities, it will shall give each Pre-Emptive Right Holder written notice of such the issuance of Additional Shares (the "Issuance Notice"), which notice shall be delivered at least fifteen (15) days prior to such issuance), describing the New Securities and set forth the price and other terms upon which of such issuance, to each of the Company proposes Shareholders at any time prior to issue the sameissuance of such Additional Shares (the "Issuance Date"), and setting forth the number of shares or other number of New Securities which such Stockholder is entitled to purchase pursuant to such Stockholder’s Pre-Emptive Allocation and the aggregate purchase price therefor. Each Pre-Emptive Right Holder will have within ten (10) days from following the date Issuance Date. Upon receipt of delivery of the Issuance Notice, any such notice from Shareholder may accept the Company to agree to purchase a specified portion of such New Securities up to such Stockholder’s Pre-Emptive Allocation, or any lesser number, for the price and upon the terms specified in the notice (provided that the Pre-Emptive Right Holders shall be entitled to pay cash in lieu of any non-cash consideration) Offer by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If not all of the Pre-Emptive Right Holders elect to purchase their full Pre-Emptive Allocation of New Securities, then the Company shall notify in writing the fully-participating Pre-Emptive Right Holders of such and offer such holders the right to acquire such unsubscribed New Securities. Each fully-participating Pre-Emptive Right Holder so notified shall have the right to purchase its pro rata share of the unsubscribed New Securities within ten (in proportion to the Overall Percentage Interests of all fully participating Pre-Emptive Right Holders) within five (5) days from the date of such notice from the Company by giving written notice to the Company and stating therein the quantity of unsubscribed New Securities to be purchased.10)
(c) In Each Shareholder will be entitled to purchase Additional Shares at the event any Pre-Emptive Right Holder fails to exercise such right of first refusal within said ten (10) day period (or, as applicable, such 15-day period), the Company will have seventy five (75) days thereafter to sell the New Securities as to which such Pre-Emptive Right Holder’s right was not exercised, at a same price and upon the same terms as Additional Shares being offered to the other purchaser thereof; provided that, if such other terms no more favorable persons is to pay for such Additional Shares in whole or in part with consideration other than cash, then the Board, in its good faith judgment, shall make a determination of the fair market value of such consideration, and each Shareholder will be entitled to purchase the Additional Shares for cash equal to the purchasers thereof than those specified fair market value of the aggregate cash and non-cash consideration each of them would otherwise pay hereunder. Notwithstanding the foregoing, no Shareholder will be permitted to exercise its rights under this SECTION 9 unless it agrees to purchase all shares of Common Stock offered as a package or unit in the Company’s notice. In issuance of the event the Company has not sold such New Securities within said seventy five (75)-day period, the Company will not thereafter issue or sell any New Securities without first offering such New Securities to each Pre-Emptive Rights Holder in the manner provided aboveAdditional Shares.
(d) The pre-emptive rights granted Company shall promptly deliver to each Shareholder purchasing Additional Shares hereunder certificates evidencing such Additional Shares purchased by this Section 7 such Shareholder, upon receipt of payment therefor, and upon execution of such documents and instruments as shall be exercisable only by “accredited investors” as defined under Section 501 govern the issuance of Regulation D of the Securities Actsuch Additional Shares.
(e) The closing provisions of this Section 9 shall terminate upon consummation of an IPO.
(f) Notwithstanding anything in this Agreement to the contrary, the Kellxxx Xxxreholders shall not be entitled to any pre-emptive rights with respect to the issuance of any sale securities of New Securities shall be on the date set forth in the notice provided by the Company pursuant to Section 7(b); provided, that such date shall be extended as to any participating Pre-Emptive Right Holder for up to forty (40) days (or such longer period as may be approved and by the Company, which approval shall not be unreasonably delayed or withheld) for purposes of obtaining any necessary approvals from Governmental Authorities. The exercise or non-exercise of the rights of the Pre-Emptive Right Holders under this Section 7 shall not adversely affect their rights to participate in subsequent offerings of New Securities subject to Section 7.
Appears in 1 contract
Pre-emptive Rights. (ai) Each Stockholder If the Company proposes, following the Closing, to issue any new Common Shares, any securities convertible into or exchangeable into Common Shares or any warrants or other rights to subscribe for Common Shares (for “Relevant Securities”), the purpose Company shall notify Buyer in writing of this Section 7such proposal (an “Issue Notice”). The Issue Notice shall specify the number and type of Relevant Securities to be offered by the Company and the material terms of the proposed offer (including the proposed price per Relevant Security to be paid by the proposed third party purchaser(s)).
(ii) Subject to sub-paragraph (vii) below, each a “Pre-Emptive Right Holder”) the Buyer shall have the right to purchase or to purchase through HKCo such Pre-Emptive Right Holder’s Overall Percentage Interest number of the Relevant Securities which are the subject of the Issue Notice so as to enable the Buyer (for together with HKCo) to hold, after the purpose issue of this Section 7 the “Pre-Emptive Allocation”)Relevant Securities a pro rata portion of the Relevant Securities equal to the percentage of the issued share capital of the Company then beneficially owned by the Buyer (together with the HKCo and the Permitted Transferee) prior to the issuance of the Relevant Securities, or any lesser numberprovided that the Buyer, of any new shares of Common Stock, or any other equity securities HKCo and the Permitted Transferee together maintains an ownership interest equal to not less than five per cent. (5%) of the Company, including securities convertible into, exercisable for, or exchangeable for Common Stock, that the Company may, ’s issued share capital from time to time, propose to sell and issue, in each case, other than Excluded Securities and securities issued in connection with stock splits, stock dividends, in-kind equity distributions and recapitalizations (collectively, “New Securities”).
(b) In the event the Company proposes to undertake an issuance of New Securities, it will give each Pre-Emptive Right Holder written notice of such issuance (which notice shall be delivered at least fifteen (15) days prior to such issuance), describing the New Securities and the price and terms upon which the Company proposes to issue the same, and setting forth the number of shares or other number of New Securities which such Stockholder is entitled to purchase pursuant to such Stockholder’s Pre-Emptive Allocation and the aggregate purchase price therefor. Each Pre-Emptive Right Holder will have ten (10) days from the date of delivery of any such notice from the Company to agree to purchase a specified portion of such New Securities up to such Stockholder’s Pre-Emptive Allocation, or any lesser number, for the price and upon the same terms specified and conditions set forth in the notice (provided that the Pre-Emptive Right Holders shall be entitled to pay cash in lieu of any non-cash consideration) Issue Notice, by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If not all of the Pre-Emptive Right Holders elect to purchase their full Pre-Emptive Allocation exercise of New Securities, then the Company shall notify in writing the fully-participating Pre-Emptive Right Holders of such and offer such holders the this right to acquire such unsubscribed New Securities. Each fully-participating Pre-Emptive Right Holder so notified shall have the right to purchase its pro rata share of the unsubscribed New Securities (in proportion to the Overall Percentage Interests of all fully participating Pre-Emptive Right Holders) within five (5) days from the date of such notice from the Company by giving written notice to the Company and stating therein the quantity of unsubscribed New Securities to be purchased.
(c) In the event any Pre-Emptive Right Holder fails to exercise such right of first refusal within said ten (10) day period Business Days (or, as applicable, defined below) of the giving of the Issue Notice. If such 15-day periodnotice is not given by the Buyer within such ten (10) Business Days (as defined below), the Buyer shall be deemed to have elected not to exercise its rights under this Section 4(k)(ii) with respect to the issuance described in that specific Issue Notice. The parties acknowledge that any rights of the Buyer to purchase the Relevant Securities pursuant to this Section 4(k)(ii) will lapse if completion thereof does not occur simultaneously with the Buyer’s completion of the offering of Relevant Securities or at such other time and place as shall be mutually agreed by the Company will have seventy five and the Buyer, provided that if the reason for the Buyer’s failure to complete by the time specified above is solely due to a delay of the Governmental Entity in granting the relevant authorizations, approvals, permits, qualifications or exemptions, the Buyer shall notify the Company in writing at least seven (757) days thereafter prior to sell the New completion of the offering of the Relevant Securities to extend the completion date for Buyer to a date within three (3) months or such other reasonable period as may be mutually agreed between the parties following the completion of the issue of the Relevant Securities, after such period the right to the Buyer to purchase the Relevant Securities pursuant to this Section 4(k)(ii) shall lapse. A notice given by the Buyer pursuant to this section shall be irrevocable.
(iii) Subject to Section 4(k)(ii) above, the completion of the Buyer’s purchase of Relevant Securities pursuant to section (ii) above shall occur simultaneously with the completion of the offering of Relevant Securities. For the avoidance of doubt, the completion by the Company of the offering of the Relevant Securities shall not be affected by the timing of the completion of any issue of the Relevant Securities to the Buyer or the HKCo. The Buyer shall execute and deliver to the Company all transaction documents related to Buyer’s purchase of Relevant Securities as to which such Pre-Emptive Right Holder’s right was not exercised, at a price and upon such other terms no more favorable may be reasonably requested by the Company prior to the purchasers thereof than those specified in completion of the CompanyBuyer’s noticepurchase of Relevant Securities. In the event the Company has not sold At such New Securities within said seventy five (75)-day periodcompletion, the Company will not thereafter issue or sell any New Securities without first offering such New Buyer shall deliver the aggregate purchase price for the Relevant Securities to each Pre-Emptive Rights Holder in be purchased by the manner provided Buyer pursuant to Section 4(k)(ii) above.
(div) The pre-emptive rights granted by Any Common Shares issued to the Buyer pursuant to this Section 7 4(k)(ii) above shall be exercisable only by “accredited investors” issued on the same terms and subject to the same conditions as defined under Section 501 of Regulation D of the Relevant Securities Actare issued to any proposed third party purchaser(s), such terms and conditions being set out in the Issue Notice.
(ev) The closing provisions of Section 4(k)(i) to (iv) shall not apply to:
(1) the grant of any sale employment options (including those given to directors or consultants), or the issue of New any Relevant Securities shall be on pursuant to the exercise of employment based share options (including those given to directors or consultants) granted (whether prior to or after the date set forth of this Agreement), pursuant to any share purchase or share option plans of the Company in effect from time to time;
(2) the notice provided issue of any Relevant Securities pursuant to any share incentive scheme operated by the Company from time to time;
(3) the issue of any Common Shares or other securities pursuant to Section 7(bthe conversion, exchange or exercise of any securities that were previously offered and/or issued to Buyer (including HKCo and its Permitted Transferee, if applicable) as Relevant Securities;
(4) any offer of the Relevant Securities open for a period fixed by the Board to holders of Common Shares on the register of members on a fixed record date in proportion to their then holdings of Common Shares; provided that such offer of Relevant Securities is also made to Buyer (including HKCo), unless it is restricted by any legal restrictions under the laws of the relevant place or the requirements of the relevant regulatory body or stock exchange in that place to make such offer to the Buyer;
(5) an issue of Common Shares as fully paid to holders of Common Shares (including without limitation, Common Shares paid up out of distributable profits or reserves and/or share premium account issued in lieu of the whole or any part of any cash dividend and free distributions or bonus issue of Common Shares); provided that such issuance of Common Shares is also made to Buyer (including HKCo, if applicable);
(6) an issue of the Relevant Securities pursuant to the acquisition of another corporation by the Company by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement; provided, that such date shall be extended as to any participating Pre-Emptive Right Holder for up to forty (40) days (or such longer period as may be issuance is approved by the CompanyBoard;
(7) the issue of any Relevant Securities as a result of the conversion of the Convertible Bonds; or
(8) the issue of any Relevant Securities to Datang pursuant to the Datang Pre-emptive Right and/or to Country Hill pursuant to the Country Hill Pre-emptive Right, which approval in each case as a result of the issuance of the New Common Shares pursuant to this Agreement.
(vi) The rights set forth in this Section 4(k) shall not be unreasonably delayed or withheld) for purposes apply with respect to and shall expire immediately prior to a transaction that would result in a change of obtaining any necessary approvals from Governmental Authorities. The exercise or non-exercise of control (as such term is defined under the rights of the Pre-Emptive Right Holders under this Section 7 shall not adversely affect their rights to participate in subsequent offerings of New Securities subject to Section 7Hong Kong Takeovers Code).
Appears in 1 contract
Samples: Share Purchase Agreement (Semiconductor Manufacturing International Corp)
Pre-emptive Rights. (a) Each Stockholder Other than Shares to be issued in the Initial Public Offering, and subject to the Restrictions and applicable regulatory approvals, if any additional Shares or options, rights, warrants or other instruments to purchase Shares or securities convertible into or exchangeable for Shares (for the purpose of collectively referred to in this Section 7as “Additional Securities”), are to be issued by the Corporation for cash, the Corporation shall first offer to each of CSR InvestCo (so long as CSR InvestCo has not undergone a “PreCSR InvestCo Change of Control and owns a number of Shares at least equal to the CSR InvestCo Ownership Threshold) and to XM Holdings (to the extent permitted by applicable Canadian laws and so long as XM Holdings owns a number of Shares at least equal to the XM Ownership Threshold), such portion of the Additional Securities as will enable them to continue to hold the same percentage (on a fully diluted basis) of Shares (treating all Shares as a single class of Class A Shares on an as-Emptive Right Holder”converted basis, including counting each Class C Share as one Class A Share) shall have following the right issuance of the Additional Securities as held by CSR InvestCo and XM Holdings prior to purchase such Pre-Emptive Right Holder’s Overall Percentage Interest the issuance of the Additional Securities, by written notice (for the purpose of this Section 7 the “Pre-Emptive AllocationRights Notice”) given to it of the Corporation’s intention to issue Additional Securities and the number and purchase price of such Additional Securities to be so issued; provided, however, that CSR InvestCo, to the extent it wishes to purchase Additional Securities consisting of Class A Shares or rights to purchase Class A Shares, shall be permitted to purchase a combination of Class A Shares and Class B Shares (or rights to purchase the same) that most nearly approximates the voting percentage then held by CSR InvestCo (the “Voting Equivalent Shares”), . Each of CSR InvestCo and XM Holdings shall have 10 Business Days from the date the Pre-Emptive Rights Notice is given to give a notice to the Corporation of its intention to purchase all or any lesser number, of any new shares of Common Stock, or any other equity securities of the CompanyAdditional Securities to which it is entitled and shall indicate in such notice the maximum number of Additional Securities that it is willing to purchase. The transaction of purchase and sale by the Corporation of Additional Securities shall be completed on the date specified by the Board, including securities convertible into, exercisable for, or exchangeable for Common Stock, provided that such date shall not be more than 45 days after the Company may, from time to time, propose to sell and issue, in each case, other than Excluded Securities and securities issued in connection with stock splits, stock dividends, indate of the Pre-kind equity distributions and recapitalizations (collectively, “New Securities”)Emptive Rights Notice.
(b) In The Corporation may issue Additional Securities without complying with the event provisions of subsection (a) of this Section 5.3:
(i) if such Additional Securities are Permitted Additional Securities; or
(ii) if the Company proposes to undertake an issuance application of New Securities, it will give each Pre-Emptive Right Holder written notice of such issuance (which notice shall be delivered at least fifteen (15Section 5.3(a) days prior to such issuance), describing the New Securities and the price and terms upon which the Company proposes to issue the same, and setting forth the number of shares or other number of New Securities which such Stockholder is entitled to purchase pursuant to such Stockholder’s Pre-Emptive Allocation and the aggregate purchase price therefor. Each Pre-Emptive Right Holder will have ten (10) days from the date of delivery of any such notice from the Company to agree to purchase a specified portion of such New Securities up to such Stockholder’s Pre-Emptive Allocation, or any lesser number, for the price and upon the terms specified in the notice (provided that the Pre-Emptive Right Holders shall be entitled to pay cash in lieu of any non-cash consideration) by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If not all of the Pre-Emptive Right Holders elect to purchase their full Pre-Emptive Allocation of New Securities, then the Company shall notify waived in writing the fully-participating Pre-Emptive Right Holders of such by CSR InvestCo and offer such holders the right to acquire such unsubscribed New Securities. Each fully-participating Pre-Emptive Right Holder so notified shall have the right to purchase its pro rata share of the unsubscribed New Securities (in proportion to the Overall Percentage Interests of all fully participating Pre-Emptive Right Holders) within five (5) days from the date of such notice from the Company by giving written notice to the Company and stating therein the quantity of unsubscribed New Securities to be purchasedXM Holdings.
(c) In the event any Pre-Emptive Right Holder fails Subject to exercise such right of first refusal within said ten (10Section 5.3(b)(i) day period (or, as applicable, such 15-day periodand despite Section 5.3(a), the Company will have seventy five (75) days thereafter to sell the New Securities if applicable Canadian laws change so as to permit XM Holdings to hold greater than 33-1/3% of the Shares (treating all Shares as a single class of Class A Shares on an as-converted basis, including counting each Class C Share as one Class A Share), then after such date if any Additional Securities which XM Holdings would be permitted to purchase under applicable Canadian laws (collectively referred to in this Section as “Law Change Additional Securities”) are to be issued, the Corporation shall, subject to applicable regulatory requirements, first offer 50% of such Pre-Emptive Right HolderLaw Change Additional Securities to XM Holdings and the other 50% to CSR InvestCo by written notice given to it of the Corporation’s right was not exercisedintention to issue Law Change Additional Securities and the number and purchase price of such Law Change Additional Securities to be so issued, at a price and upon such other terms no more favorable provided, however, that CSR InvestCo, to the purchasers thereof than those specified in extent it wishes to purchase Law Change Additional Securities consisting of Class A Shares or rights to purchase Class A Shares, shall be permitted to purchase the Company’s noticeVoting Equivalent Shares. In XM Holdings and CSR InvestCo shall have 10 Business Days from the event date such notice is given to give a notice to the Company has not sold such New Corporation of its intention to purchase all or any of the Law Change Additional Securities within said seventy five (75)-day period, the Company will not thereafter issue or sell any New Securities without first offering such New Securities offered to each Pre-Emptive Rights Holder in the manner provided above.
(d) The pre-emptive rights granted by it pursuant to this Section 7 to which it is entitled and shall be exercisable only by “accredited investors” as defined under Section 501 indicate in such notice the maximum number of Regulation D of the Law Change Additional Securities Act.
(e) The closing of any sale of New Securities shall be on the date set forth in the notice provided by the Company offered to it pursuant to Section 7(b); provided, that such date shall be extended as to any participating Pre-Emptive Right Holder for up to forty (40) days (or such longer period as may be approved by the Company, which approval shall not be unreasonably delayed or withheld) for purposes of obtaining any necessary approvals from Governmental Authorities. The exercise or non-exercise of the rights of the Pre-Emptive Right Holders under this Section 7 shall not adversely affect their rights that it is willing to participate in subsequent offerings of New Securities subject to Section 7purchase.
Appears in 1 contract
Samples: Shareholders Agreement (Canadian Satellite Radio Holdings Inc.)
Pre-emptive Rights. Except as otherwise provided herein, and except for Shares to be made available for compensation purposes pursuant to the Stock Option Plan (aas defined in Section 4.01 below) Each Stockholder and acquisitions approved by the Board or which are otherwise permitted under that Section, the Company shall not offer, issue or sell, or enter into any agreement or commitment to offer, issue or sell any of its shares or any options, rights or other securities to acquire any such shares (for collectively, the purpose "Preemptive Shares"), unless the Company shall first offer in writing to sell to each of the Shareholders, on the same terms and conditions and at the same equivalent price, the number of shares equal to the Proportionate Amount (as defined below); provided that in the event a Shareholder elects not to exercise its rights pursuant to this Section 73.08, whether in full or in part, each a “Pre-Emptive Right Holder”) other Shareholder shall have the right to purchase subscribe for such Prenon-Emptive Right Holder’s Overall Percentage Interest (for the purpose of this Section 7 the “Pre-Emptive Allocation”), or any lesser number, of any new shares of Common Stock, or any other equity securities of the Company, including securities convertible into, exercisable for, or exchangeable for Common Stock, that the Company may, from time to time, propose to sell and issue, in each case, other than Excluded Securities and securities issued in connection with stock splits, stock dividends, in-kind equity distributions and recapitalizations (collectively, “New Securities”).
(b) electing Shareholder's Proportionate Amount. In the event the Company proposes subscription by each other Shareholder for the non-electing Shareholder's Proportionate Amount exceeds the Proportionate Amount, each other Shareholder shall be entitled to undertake an issuance of New Securities, it will give each Pre-Emptive Right Holder written notice subscribe for the pro rata portion of such issuance (which notice shall be delivered at least fifteen (15) days prior to such issuance), describing the New Securities and the price and terms upon which the Company proposes to issue the same, and setting forth Proportionate Amount based on the number of Shares held by each Shareholder on such date. The "Proportionate Amount" shall be equal to the product of (x) all such shares and securities to be sold or other issued and (y) a fraction (i) the numerator of which shall be the number of New Securities Shares owned by such Shareholder and (ii) the denominator of which such Stockholder is entitled to purchase pursuant to such Stockholder’s Pre-Emptive Allocation and shall be the aggregate purchase price therefornumber of outstanding Shares. Each Pre-Emptive Right Holder will have ten (10) Such offer shall remain outstanding for at least 14 days from the date of delivery of any such written notice from the Company to agree to purchase a specified portion of such New Securities up to such Stockholder’s Pre-Emptive Allocation, or any lesser number, for the price and upon the terms specified in the notice (provided that the Pre-Emptive Right Holders shall be entitled to pay cash in lieu of any non-cash consideration) exercised by a Shareholder giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If not all of the Pre-Emptive Right Holders elect to purchase their full Pre-Emptive Allocation of New Securities, then the Company shall notify in writing the fully-participating Pre-Emptive Right Holders of within such and offer such holders the right to acquire such unsubscribed New Securities. Each fully-participating Pre-Emptive Right Holder so notified shall have the right to purchase its pro rata share of the unsubscribed New Securities (in proportion to the Overall Percentage Interests of all fully participating Pre-Emptive Right Holders) within five (5) days from the date of such notice from the Company by giving written notice to the Company and stating therein the quantity of unsubscribed New Securities to be purchased.
(c) In the event any Pre-Emptive Right Holder fails to exercise such right of first refusal within said ten (10) 14 day period (or, as applicable, a "Preemptive Notice"). Following the completion of such 15-14 day period), the Company will have seventy five (75) days thereafter to sell the New Securities as to which such Pre-Emptive Right Holder’s right was not exercised, at a price and upon such other terms no more favorable to the purchasers thereof than those specified in the Company’s notice. In the event the Company has not sold such New Securities within said seventy five (75)-day period, the Company will not thereafter issue or shall have the right, for a period of 60 days to sell any New Securities without first offering Preemptive Shares not purchased by existing Shareholders, on substantially similar terms and at a price per share not less than the per share price in respect of the Preemptive Shares offered to such New Securities Shareholders. Thereafter, any offer, sale or issuance of Preemptive Shares shall again be subject to each Pre-Emptive Rights Holder in the manner provided above.
(d) The pre-emptive rights granted by provisions of this Section 7 3.08. The terms of this Section 3.08 shall terminate and be exercisable only by “accredited investors” as defined under Section 501 of Regulation D of the Securities Act.
(e) The closing of any sale of New Securities shall be null and void on the date set forth in the notice provided by the Company pursuant to Section 7(b); provided, that such date shall be extended as to any participating Pre-Emptive Right Holder for up to forty (40) days (or such longer period as may be approved by the Company, which approval shall not be unreasonably delayed or withheld) for purposes of obtaining any necessary approvals from Governmental Authorities. The exercise or non-exercise of the rights of the Pre-Emptive Right Holders under this Section 7 shall not adversely affect their rights to participate in subsequent offerings of New Securities subject to Section 7Initial Public Offering is completed.
Appears in 1 contract
Pre-emptive Rights. In the event that Holdings proposes to issue equity securities, or rights, options or warrants exercisable to purchase equity securities, or securities convertible into equity securities (collectively "Equity Securities"), the following provisions shall apply:
(a) Each Stockholder (for the purpose of this Section 7, each a “Pre-Emptive Right Holder”) shall have the right to purchase such Pre-Emptive Right Holder’s Overall Percentage Interest (for the purpose of this Section 7 the “Pre-Emptive Allocation”), or any lesser number, of any new shares of Common Stock, or any other equity securities of the Company, including securities convertible into, exercisable for, or exchangeable for Common Stock, that the Company may, from time to time, propose to sell and issue, in each case, other than Excluded Securities and securities issued in connection with stock splits, stock dividends, in-kind equity distributions and recapitalizations (collectively, “New Securities”).
(b) In the event the Company Holdings proposes to undertake an issuance of New issue any Equity Securities, it will give Holdings shall deliver a notice to each Pre-Emptive Right Holder written notice of such issuance Management Stockholder on the date hereof (which notice shall be delivered at least fifteen (15an "Initial Stockholder") days prior stating its intention to such issuance), describing issue the New Equity Securities and the price and terms upon which the Company it proposes to issue the sameEquity Securities. Within 15 days after the receipt of such notice, and setting forth each Initial Stockholder may elect to purchase up to that portion of the Equity Securities to be issued as is equal to the proportion that the number of shares or other of Stock issued and outstanding and held by such Initial Stockholder bears to the total number of New Securities which such Stockholder is entitled to purchase pursuant to such Stockholder’s Pre-Emptive Allocation common equity shares of Holdings issued and the aggregate purchase price therefor. Each Pre-Emptive Right Holder will have ten (10) days from the date of delivery of any such notice from the Company to agree to purchase a specified portion of such New Securities up to such Stockholder’s Pre-Emptive Allocation, or any lesser number, for the price and upon the terms specified in the notice (provided that the Pre-Emptive Right Holders shall be entitled to pay cash in lieu of any non-cash consideration) by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If not all of the Pre-Emptive Right Holders elect to purchase their full Pre-Emptive Allocation of New Securities, then the Company shall notify in writing the fully-participating Pre-Emptive Right Holders of such and offer such holders the right to acquire such unsubscribed New Securities. Each fully-participating Pre-Emptive Right Holder so notified shall have the right to purchase its pro rata share of the unsubscribed New Securities outstanding (in proportion each instance excluding as outstanding any Stock subject to the Overall Percentage Interests of all fully participating Pre-Emptive Right Holders) within five (5) days from the date of such notice from the Company by giving written notice to the Company and stating therein the quantity of unsubscribed New Securities to be purchasedforfeiture restrictions).
(cb) In If an Initial Stockholder elects to purchase his portion of the event any Pre-Emptive Right Holder fails to exercise such right of first refusal within said ten (10) day period (orEquity Securities, as applicable, such 15-day period), the Company will have seventy five (75) days thereafter to sell the New Securities as to which such Pre-Emptive Right Holder’s right was not exercised, at a price and upon such other terms no more favorable to the purchasers thereof than those specified in the Company’s notice. In the event the Company has not sold such New Securities within said seventy five (75)-day period, the Company will not thereafter issue he or sell any New Securities without first offering such New Securities to each Pre-Emptive Rights Holder in the manner provided above.
(d) The pre-emptive rights granted by this Section 7 it shall be exercisable only by “accredited investors” as defined under Section 501 required to do so on such date (the "Funding Date") which is the later of Regulation D of the Securities Act.
(e) The closing of any sale of New Securities shall be on the date set forth in the notice provided by referred to in Section 6(a) above or 10 days after such Stockholder has elected to purchase Equity Securities. The purchase of the Company pursuant to Section 7(b); provided, that such date Equity Securities shall be extended on the same terms and conditions as set forth in the notice. If any such Stockholder fails to any participating Preelect to purchase his portion of the Equity Securities within the 15-Emptive Right Holder for up day period, Holdings may proceed to forty (40) offer the Equity Securities on terms no more favorable to the offeree than as set forth in the notice. If Holdings fails to complete the sale of Equity Securities on such basis within 180 days (or such longer period as may of the date of its original notice, the right provided hereunder to the Initial Stockholders shall be approved by deemed to be revived; and the Company, which approval Equity Securities shall not be unreasonably delayed or withheldoffered unless first reoffered to the Initial Stockholders in accordance with this provision.
(c) for purposes of obtaining any necessary approvals from Governmental Authorities. The exercise or non-exercise of the preemptive rights of the Pre-Emptive Right Holders under in this Section 7 6 shall not adversely affect their rights be applicable to participate (i) the sale of shares under options or awards pursuant to stock plans adopted by the Board of Directors of Holdings, (ii) the IPO, (iii) the issuance of securities in subsequent offerings connection with a bona fide business acquisition of New Securities subject to Section 7or by Holdings, whether by merger, sale of assets or otherwise, or (iv) the issuance of warrants or other securities in connection with a bona fide incurrence of debt by Holdings or the Company.
Appears in 1 contract
Samples: Support and Exchange Agreement (D&b Acquisition Sub Inc)
Pre-emptive Rights. From the Closing Date until the later of (a) Each Stockholder January 11, 2010, or (for b) if issued, the purpose date on which fewer than 50% of the shares of Preferred Stock initially issued in the Preferred Financing (as defined in Section 5(k)) remain outstanding, the Company shall not directly or indirectly, offer, sell or grant any option to purchase (or announce any offer, sale, grant or any option to purchase or other disposition of) any Common Stock, Options or Convertible Securities (any such offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”) unless the Company shall have first complied with this Section 7, 5(k).
(i) The Company shall deliver at least ten (10) days prior to the closing of a Subsequent Placement to each Lender a written notice (the “Pre-Emptive Right HolderOffer Notice”) shall have the right to purchase such Pre-Emptive Right Holder’s Overall Percentage Interest of any proposed or intended issuance or sale or exchange (for the purpose of this Section 7 the “Pre-Emptive AllocationOffer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, and (C) offer to issue and sell to or exchange with such Lenders at least 50% of the Offered Securities, allocated among such Lenders (a) based on such Lender’s pro rata portion of the aggregate principal amount of Convertible Notes purchased hereunder (the “Basic Amount”), or and (b) with respect to each Lender that elects to purchase its Basic Amount, any lesser number, of any new shares of Common Stock, or any other equity securities additional portion of the Company, including securities convertible into, exercisable for, Offered Securities attributable to the Basic Amounts of other Lenders as such Lender shall indicate it will purchase or exchangeable acquire should the other Lenders subscribe for Common Stock, that less than their Basic Amounts (the Company may, from time to time, propose to sell and issue, in each case, other than Excluded Securities and securities issued in connection with stock splits, stock dividends, in-kind equity distributions and recapitalizations (collectively, “New SecuritiesUndersubscription Amount”).
(bii) In the event the Company proposes to undertake To accept an issuance of New SecuritiesOffer, it will give each Pre-Emptive Right Holder written notice of in whole or in part, such issuance (which notice shall be delivered at least fifteen (15) days prior to such issuance), describing the New Securities and the price and terms upon which the Company proposes to issue the same, and setting forth the number of shares or other number of New Securities which such Stockholder is entitled to purchase pursuant to such Stockholder’s Pre-Emptive Allocation and the aggregate purchase price therefor. Each Pre-Emptive Right Holder will have ten (10) days from the date of delivery of any such notice from the Company to agree to purchase Lender must deliver a specified portion of such New Securities up to such Stockholder’s Pre-Emptive Allocation, or any lesser number, for the price and upon the terms specified in the notice (provided that the Pre-Emptive Right Holders shall be entitled to pay cash in lieu of any non-cash consideration) by giving written notice to the Company and stating therein prior to the quantity end of New Securities the 10th business day after such Lender’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Lender’s Basic Amount that such Lender elects to be purchasedpurchase and, if such Lender shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Lender elects to purchase (in either case, the “Notice of Acceptance”). If not the Basic Amounts subscribed for by all Lenders are less than the total of all of the Pre-Emptive Right Holders elect Basic Amounts, then each Lender who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Lender who has subscribed for any Undersubscription Amount shall be entitled to purchase their full Pre-Emptive Allocation only that portion of New Securitiesthe Available Undersubscription Amount as the Basic Amount of such Lender bears to the total Basic Amounts of all Lenders that have subscribed for Undersubscription Amounts, then subject to rounding by the Company shall notify in writing to the fully-participating Pre-Emptive Right Holders of such and offer such holders the right to acquire such unsubscribed New Securities. Each fully-participating Pre-Emptive Right Holder so notified extent its deems reasonably necessary.
(iii) The Company shall have the right to purchase its pro rata share of the unsubscribed New Securities (in proportion to the Overall Percentage Interests of all fully participating Preforty-Emptive Right Holders) within five (545) days from the date expiration of the Offer Period above to offer, issue, sell or exchange all or any part of such notice from the Company by giving written notice to the Company and stating therein the quantity of unsubscribed New Securities to be purchased.
(c) In the event any Pre-Emptive Right Holder fails to exercise such right of first refusal within said ten (10) day period (or, as applicable, such 15-day period), the Company will have seventy five (75) days thereafter to sell the New Offered Securities as to which such Pre-Emptive Right Holder’s right was a Notice of Acceptance has not exercisedbeen given by the Lenders (the “Refused Securities”), at a price but only upon terms and upon such other terms no conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the purchasers thereof acquiring person or persons or less favorable to the Company than those specified in the Company’s notice. In the event the Company has not sold such New Securities within said seventy five (75)-day period, the Company will not thereafter issue or sell any New Securities without first offering such New Securities to each Pre-Emptive Rights Holder in the manner provided above.
(d) The pre-emptive rights granted by this Section 7 shall be exercisable only by “accredited investors” as defined under Section 501 of Regulation D of the Securities Act.
(e) The closing of any sale of New Securities shall be on the date set forth in the notice provided by Offer Notice.
(iv) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Lenders shall acquire from the Company, and the Company shall issue to the Lenders, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 7(b)5(k)(iii) above if the Lenders have so elected, upon the terms and conditions specified in the Offer.
(v) Any Offered Securities not acquired by the Lenders or other persons in accordance with Section 5(k)(iii) above may not be issued, sold or exchanged until they are again offered to the Lenders under the procedures specified in this Agreement.
(vi) The restrictions contained in this Section 5(k) shall not apply to the issuance of any Common Stock issued or issuable: (i) under any Approved Stock Plan; provided, that such date shall be extended as to or (ii) upon conversion of the Convertible Notes or the exercise of the Warrants. “Approved Stock Plan” means any participating Pre-Emptive Right Holder for up to forty (40) days (or such longer period as may be employee benefit plan which has been approved by the Board of Directors and stockholders of the Company, pursuant to which approval shall not the Company’s securities may be unreasonably delayed issued to any employee, officer or withheld) director for purposes of obtaining any necessary approvals from Governmental Authorities. The exercise or non-exercise of services provided to the rights of the Pre-Emptive Right Holders under this Section 7 shall not adversely affect their rights to participate in subsequent offerings of New Securities subject to Section 7Company.
Appears in 1 contract
Samples: Convertible Note and Warrant Purchase Agreement (Alteon Inc /De)
Pre-emptive Rights. (a) Each Stockholder (for the purpose of this Section 7, each a “Pre-Emptive Right Holder”) shall have the right to purchase such Pre-Emptive Right Holder’s Overall Percentage Interest (for the purpose of this Section 7 the “Pre-Emptive Allocation”), The Company agrees that it will not sell or issue any lesser number, of any new shares of Common Stock, or any other equity securities capital stock of the Company, including or other securities convertible into, exercisable for, into or exchangeable for Common Stockcapital stock of the Company, that or options, warrants or rights carrying any rights to purchase capital stock of the Company may, from time to time, propose to sell and issue, in each case, other than Excluded Securities for full and adequate consideration as determined by the Board of Directors. Furthermore, the Company will not sell or issue any share of capital stock of the Company, or other securities issued in connection with convertible into or exchangeable for capital stock splitsof the Company, or options, warrants or rights carrying any rights to purchase capital stock dividendsof the Company, in-kind equity distributions and recapitalizations unless the Company first submits a written offer to all the Stockholders (collectively, “New Securities”).
(bthe "Offerees") In identifying the event terms of the Company proposes to undertake an issuance of New Securities, it will give each Pre-Emptive Right Holder written notice of such proposed sale or issuance (which notice shall be delivered at least fifteen (15) days prior to such issuanceincluding price, number of securities and all other material terms), describing and offers to each Offeree the New Securities opportunity to acquire its Pro Rata Allotment (as hereinafter defined) of the securities on substantially the same terms and the price and terms upon conditions, including price, as those on which the Company proposes to sell or issue such securities to a third party or parties; provided, however, that the sameforegoing preemptive rights shall not apply to any offer, sale or issuance of the Series D Preferred Stock pursuant to the Series D Purchase Agreement or the Series E Preferred Stock pursuant to the Series E Purchase Agreement. Each Offeree's "Pro Rata Allotment" of such securities shall be based on the ratio which the shares of Common Stock held by him or it (as determined in accordance with Section 1.2 hereof) bears to all of the then issued and outstanding shares of Common Stock held by all of the Stockholders (as determined in accordance with Section 1.2 hereof) as of the date of such written offer. The Company's offer to the Offerees shall remain open and irrevocable for a period of 30 days during which time the Offerees may accept such offer by written notice to the Company setting forth the maximum number of shares or other number of New Securities securities to be acquired by any such Offeree. Any shares or securities so offered which such Stockholder is entitled to purchase are not acquired pursuant to such Stockholder’s Pre-Emptive Allocation and the aggregate purchase price therefor. Each Pre-Emptive Right Holder will have ten (10) days from the date of delivery of any such notice from offer may be sold by the Company to agree to purchase a specified portion of such New Securities up to such Stockholder’s Pre-Emptive Allocation, or any lesser number, for the price and upon but only on the terms specified in the notice (provided that the Pre-Emptive Right Holders shall be entitled to pay cash in lieu of any non-cash consideration) by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. If not all of the Pre-Emptive Right Holders elect to purchase their full Pre-Emptive Allocation of New Securities, then the Company shall notify in writing the fully-participating Pre-Emptive Right Holders of such and offer such holders the right to acquire such unsubscribed New Securities. Each fully-participating Pre-Emptive Right Holder so notified shall have the right to purchase its pro rata share of the unsubscribed New Securities (in proportion to the Overall Percentage Interests of all fully participating Pre-Emptive Right Holders) within five (5) days from the date of such notice from the Company by giving written notice to the Company and stating therein the quantity of unsubscribed New Securities to be purchased.
(c) In the event any Pre-Emptive Right Holder fails to exercise such right of first refusal within said ten (10) day period (or, as applicable, such 15-day period), the Company will have seventy five (75) days thereafter to sell the New Securities as to which such Pre-Emptive Right Holder’s right was not exercised, at a price and upon such other terms no more favorable to the purchasers thereof than those specified in the Company’s notice. In the event the Company has not sold such New Securities within said seventy five (75)-day period, the Company will not thereafter issue or sell any New Securities without first offering such New Securities to each Pre-Emptive Rights Holder in the manner provided above.
(d) The pre-emptive rights granted by this Section 7 shall be exercisable only by “accredited investors” as defined under Section 501 of Regulation D of the Securities Act.
(e) The closing of any sale of New Securities shall be on the date conditions set forth in the notice provided by initial offer to the Offerees, at any time within 120 days following the termination of the above-referenced 30-day period. Notwithstanding the foregoing, the Company may (i) issue options to purchase Common Stock and shares of restricted Common Stock to its officers, directors, and employees pursuant to Section 7(b); providedstock, that such date shall be extended as to any participating Pre-Emptive Right Holder for up to forty (40) days (or such longer period as may be benefit and option plans approved by the Board of Directors (which, prior to a Class A Voting Termination Event, shall include the approval of at least a majority (e.g., more than 50%) of the Outside Directors, in the case of stock benefit or option plans not in effect as of the date of this Agreement or in the case of amendments to such stock, benefit or option plans approved subsequent to the date hereof) and issue shares of its Common Stock upon the exercise of any such stock options, (ii) issue securities as a result of any stock split, stock dividend, reclassification or reorganization of the Company's capital stock pro rata based on the number of shares of capital stock of the Company then outstanding (iii) issue Standard Common Stock upon any conversion of shares of Preferred Stock, (iv) issue Standard Common Stock upon any the exercise of any warrants that are outstanding of the date of this Agreement, and (v) issue securities in the Company's initial public offering, each of which approval issuances pursuant to clauses (i) through (v) shall not be unreasonably delayed or withheld) for purposes of obtaining any necessary approvals from Governmental Authorities. The exercise or non-exercise of the rights of the Pre-Emptive Right Holders under this Section 7 shall not adversely affect their rights to participate in subsequent offerings of New Securities subject to Section 7the foregoing preemptive rights.
Appears in 1 contract
Samples: Stockholders Agreement (Metropcs Communications Inc)
