Common use of Preemptive Right Clause in Contracts

Preemptive Right. 6.1 At any time after the date hereof and subject to the following sentence, if the Company proposes to issue any New Securities for cash (a “Preemptive Right Offering”), the Purchaser shall have the right (but not the obligation) to purchase up to such number of New Securities as required to maintain an Ownership Percentage (i) if the Pricing Condition is met with respect to such Preemptive Right Offering, at the lesser of (a) 15% and (b) its Ownership Percentage immediately prior to such Preemptive Right Offering, or (ii) if the Pricing Condition is not met with respect to such Preemptive Right Offering, its Ownership Percentage immediately prior to such Preemptive Right Offering, in each case, on the same terms and conditions that are applicable to such New Securities, at a price per share or security equal to the price paid by the purchaser(s) in such issuance of New Securities (such shares, the “Preemptive Right Shares”), provided that Purchaser shall not be entitled to acquire Preemptive Right Shares pursuant to this Section 6.1 to the extent that the issuance of such Preemptive Right Shares to Purchaser would require approval of the stockholders of the Company pursuant to the rules and listing standards of the Principal Market, in which the Company may in its discretion consummate the proposed issuance of New Securities in such Preemptive Right Offering to other Persons prior to obtaining approval of the stockholders of the Company (subject to compliance with Section 6.3 below). The Purchaser’s right to participate in Preemptive Right Offerings shall terminate following a Termination Event. Notwithstanding the foregoing, the Purchaser may not participate in a Preemptive Right Offering that occurs within six months following a sale or other disposition for value by the Purchaser of any of the shares of Common Stock purchased pursuant to the Common Stock Purchase Agreement.

Preemptive Right. 6.1 At Except for (i) the issuance of Company Securities by the Company upon conversion or exercise of any time after Company Securities that have been issued in compliance with this Section 7.9 and the date hereof other provisions of this Agreement (including, without limitation, Section 4.8 hereof) and subject (ii) the issuance of Units pursuant to the following sentenceSection 7.2(c), Section 7.11 or Section 7.12, if the Company proposes to issue any New Securities for cash (a “Preemptive Right Offering”), the Purchaser shall have the right (but not the obligation) to purchase up to such number of New Securities as required to maintain an Ownership Percentage (i) if the Pricing Condition is met with respect to such Preemptive Right Offering, at the lesser of Board (a) 15% determines that additional capital is required by the Company to (A) facilitate the business needs of the Company, including without limitation, to pay operating deficits or Cost Budget Overruns (but only if such capital has not been contributed by the Members (or any of them) pursuant to Section 7.2(c)), (B) to fund the expansion of the Gaming Complexes (or either of them) or (C) to pursue a New York Harness Racing/VLT Opportunity that has been approved by unanimous vote of the Board in accordance with the terms of Section 4.4(d) and consented to by Oneida pursuant to Section 4.8, and (b) its Ownership Percentage immediately prior authorizes the issuance and sale of any Company Securities to raise such Preemptive Right Offeringadditional capital, or the Company shall first offer to sell to each Member a pro rata portion of such Company Securities (ii) if the Pricing Condition is not met with respect to such Preemptive Right Offering, its Ownership Percentage immediately prior to such Preemptive Right Offering, in each case, based on the same terms respective Percentages of each Member). Any such offer shall be provided by the Company to the Members in a Notice (the “Equity Financing Offer Notice”) which shall state the Company Securities to be offered (the “Offered Company Securities”), each Member’s pro rata share thereof and conditions that are applicable to such New Securities, at a the price per Offered Company Security. Each Member shall have thirty (30) days after its receipt of the Equity Financing Offer Notice (such period being the “Equity Financing Election Period”) to elect to purchase such Member’s pro rata share or security equal of the Offered Company Securities by delivering a Notice to the price paid by Company (an “Equity Financing Election Notice”). In the purchaser(s) in such issuance event that any Member does not elect to purchase its full allocable share of New any Offered Company Securities (such shares, the Offered Company Securities not so elected to be purchased being “Preemptive Right SharesAvailable Securities”), provided then such Available Securities may be purchased by those Members (the “Fully Subscribed Members”) that Purchaser have elected to purchase their full allocable share, with any such purchase to be made by such Fully Subscribed Members pro rata (based on such Fully Subscribed Member’s Percentage to the aggregate Percentage of all Fully Subscribed Members electing to purchase Available Securities). A Fully Subscribed Member may elect to purchase all or any portion of its pro rata share of Available Securities by delivering a Notice to the Company within ten (10) days (the “Initial Equity Financing Extension Period”) after the expiration of the Equity Financing Election Period. If any portion of the Available Securities remains unallocated after the expiration of the Initial Equity Financing Extension Period, such remaining portion shall not be entitled allocated among the Fully Subscribed Members that elect to acquire Preemptive Right Shares purchase such remaining portion based on the proportionate Percentages of such Fully Subscribed Members until either such remaining portion is fully subscribed for or none of the Fully Subscribed Members elect to purchase Available Securities (which allocation described in this sentence shall in any event be concluded within five (5) days (the “Additional Equity Financing Extension Period”) following the expiration of the Initial Equity Financing Extension Period). The closing of any purchase by an Electing Member or Electing Members of Offered Company Securities pursuant to this Section 6.1 7.9 shall be held at the principal office of the Company or at such other location as the Electing Member(s) and the Company shall agree, within twenty (20) days following the later of the expiration of the Equity Financing Election Period, the Initial Equity Financing Extension Period and the Additional Equity Financing Extension Period. At any such closing, (x) the Company shall issue and sell to each Electing Member the Offered Company Securities purchased by such Electing Member free and clear of all liens and encumbrances (other than liens and encumbrances created pursuant to this Agreement), accompanied by all other documents necessary for the effective issuance thereof, as reasonably determined by such Electing Member and (y) each Electing Member shall pay the purchase price for the Offered Company Securities purchased by such Electing Member as determined in accordance with the Equity Financing Offer Notice. If at the expiration of the Equity Financing Election Period there are Available Securities and no Fully Subscribed Members or if at the expiration of the Initial Equity Financing Period or the Additional Equity Financing Period there are Available Securities and no Fully Subscribed Members that desire to purchase additional Available Securities, then the Company shall be permitted for a period of thirty (30) days following the expiration of the Equity Financing Election Period, the Initial Equity Financing Extension Period or the Additional Equity Financing Extension Period to sell such Available Securities to a third party on terms no more favorable to the extent that third party than those terms set forth in the issuance of such Preemptive Right Shares to Purchaser would require approval Equity Financing Offer Notice. If the sale of the stockholders of remaining Available Securities by the Company pursuant to the rules and listing standards immediately preceding sentence is not consummated in such 30-day period or if the terms of the Principal Marketsale change so that the terms thereof are more favorable to the third party purchaser than those terms contained in the Equity Financing Offer Notice delivered to the Members, then in which any such case such proposed sale by the Company may in its discretion consummate the proposed issuance of New Available Securities in such Preemptive Right Offering to other Persons prior to obtaining approval of the stockholders of the Company (shall again be subject to compliance with the terms of this Section 6.3 below)7.9. The Purchaser’s right Anything in this Section 7.9 to participate in Preemptive Right Offerings shall terminate following a Termination Event. Notwithstanding the foregoingcontrary notwithstanding, the Purchaser may foregoing preemptive rights shall not participate in a Preemptive Right Offering that occurs within six months following a sale or other disposition for value be applicable to any Debt Financings, which Debt Financings shall be governed solely by the Purchaser provisions set forth in Section 5.3 of any of the shares of Common Stock purchased pursuant to the Common Stock Purchase this Agreement.

Preemptive Right. 6.1 At Subject to applicable securities laws and except in connection with the issuance of any time after the date hereof and subject to the following sentenceExcluded Shares, if the Company proposes to issue any Shares, Convertible Securities or Share Purchase Rights (collectively, “New Securities for cash (a “Preemptive Right OfferingEquity Securities”), the Purchaser holder of this Warrant and the holder of any Issued Warrant Shares shall have the right (but not the obligation) to purchase up to its Preemptive Pro Rata Share of all such New Equity Securities. For the purposes of this Section 5.3, each such holder’s “Preemptive Pro Rata Share” shall be the percentage that the number of New Securities as required to maintain an Ownership Percentage (i) if the Pricing Condition is met with respect to Warrant Shares held by such Preemptive Right Offering, at the lesser holder represents of (a) 15% and (b) its Ownership Percentage all Shares on a fully diluted basis immediately prior to the issuance of the New Equity Securities. If the Company proposes to issue any New Equity Securities, it shall give the holder of this Warrant and the holder of any Issued Warrant Shares not less than twenty (20) days’ prior written notice of its intention, describing the New Equity Securities and the price and other terms and conditions upon which the Company proposes to issue the same. Each such holder shall have fifteen (15) days following receipt of such notice to elect to purchase such holder’s Preemptive Right OfferingPro Rata Share of the New Equity Securities by delivering a written notice of its election to the Company within the time period. Notwithstanding the foregoing, the Company shall not be required to offer or sell such New Equity Securities to any holder who would cause the Company to be in violation of applicable securities laws. To the extent any such holder does not elect to purchase its Preemptive Pro Rata Share of all New Equity Securities, the Company shall have one hundred eighty (ii180) if days following the Pricing Condition is expiration of the notice provided above to sell the New Equity Securities first, to electing holders and then, to any other third parties, at a price and upon general terms and conditions not met with respect materially more favorable to such Preemptive Right Offering, its Ownership Percentage immediately prior the purchasers thereof than specified in the Company’s notice to such Preemptive Right Offering, in each case, the holders (provided that the sale of all New Equity Securities to a holder or any third party shall be on the same terms and conditions that are applicable to as those specified in the notice). If the Company has not sold such New Equity Securities within such one hundred eighty (180) day period, the Company shall not thereafter issue or sell any New Equity Securities, at a price per share or security equal without first offering such securities to the price paid by holders in the purchaser(s) in such issuance of New Securities (such shares, the “Preemptive Right Shares”), manner provided that Purchaser shall not be entitled to acquire Preemptive Right Shares pursuant to this Section 6.1 to the extent that the issuance of such Preemptive Right Shares to Purchaser would require approval of the stockholders of the Company pursuant to the rules and listing standards of the Principal Market, in which the Company may in its discretion consummate the proposed issuance of New Securities in such Preemptive Right Offering to other Persons prior to obtaining approval of the stockholders of the Company (subject to compliance with Section 6.3 below). The Purchaser’s right to participate in Preemptive Right Offerings shall terminate following a Termination Event. Notwithstanding the foregoing, the Purchaser may not participate in a Preemptive Right Offering that occurs within six months following a sale or other disposition for value by the Purchaser of any of the shares of Common Stock purchased pursuant to the Common Stock Purchase Agreementabove.

Preemptive Right. 6.1 At The Issuer shall not issue additional shares of common or preferred equity of the Issuer or securities of the Issuer convertible into or exchangeable for common or preferred equity or sell any time after such securities held by the date hereof Issuer (collectively an "Issuance") unless, within 30 days following such Issuance, the Issuer notifies the holders of all outstanding shares of Series B Preferred Stock (the "Series B Holders") in writing of the Issuance and grants to the Series B Holders the right (the "Right"), subject to the following sentencelimitations set forth below, if the Company proposes to issue any New Securities subscribe for cash (a “Preemptive Right Offering”), the Purchaser shall have the right (but not the obligation) to and purchase up to such number additional shares of New Securities as required to maintain an Ownership Percentage (i) if the Pricing Condition is met with respect to such Preemptive Right Offeringcommon or preferred equity, at the lesser of (a) 15% same price and (b) its Ownership Percentage immediately prior to such Preemptive Right Offering, or (ii) if the Pricing Condition is not met with respect to such Preemptive Right Offering, its Ownership Percentage immediately prior to such Preemptive Right Offering, in each case, on the same terms as reflected in the Issuance, such that upon exercise of that Right the Series B Holders will own the same voting and conditions that are applicable economic interest in the Issuer as held by them before the Issuance. The Issuer shall prior to such New Securitiesany Issuance, at reserve a price per share sufficient number of authorized but unissued or security equal treasury shares of common or preferred equity, for issuance pursuant to the price paid Right. The Right shall be exercisable by the purchaser(sSeries B Holders or their assignee or assignees for a period of 30 business days after receipt of written notice from the Issuer of the Issuance, and the closing of the purchase and sale pursuant to the exercise of the Right shall occur within 14 days after receipt of said notice. The Right shall not apply to any shares issued (i) to employees, officers or directors pursuant to plans approved by the Board; (ii) in such issuance of New Securities connection with mergers and acquisitions; (such shares, iii) in amounts less than $500,000 in any single transaction where the “Preemptive Right Shares”)purchase price is not less than the applicable Conversion Price per share, provided that Purchaser the aggregate amount of all such transactions shall not be entitled to acquire Preemptive Right Shares exceed $1,000,000; or (iv) pursuant to this Section 6.1 to the extent that the issuance of such Preemptive Right Shares to Purchaser would require approval of the stockholders of the Company pursuant to the rules and listing standards of the Principal Market, in which the Company may in its discretion consummate the proposed issuance of New Securities in such Preemptive Right Offering to other Persons prior to obtaining approval of the stockholders of the Company (subject to compliance with Section 6.3 below)a public offering. The Purchaser’s This right to participate in Preemptive Right Offerings shall terminate following a Termination Event. Notwithstanding the foregoing, the Purchaser may not participate in a Preemptive Right Offering that occurs within six months following a sale or other disposition for value by the Purchaser as to each share of any of the shares of Series B Preferred Stock upon its conversion into Common Stock purchased pursuant to the Common Stock Purchase AgreementStock.

Preemptive Right. 6.1 At any time after the date hereof and subject to the following sentence, if the Company (a) If Holdings proposes to issue any additional voting securities, including voting securities issued upon exercise, conversion or exchange of any other securities (collectively, “New Securities for cash (a “Preemptive Right OfferingSecurities”), Holdings shall, to the Purchaser shall have extent reasonably practicable, prior to consummating the right issuance of the New Securities (but and if not reasonably practicable, then within ten days following consummation of such issuance), give written notice (the obligation“Holdings Notice”) to purchase up to such PMI, stating the number of New Securities, the price per share, the terms of payment and all other terms and conditions on which Holdings proposes to make or has made such issuance; it being understood that (i) the issuance of securities that are exercisable for or convertible or exchangeable into voting securities shall not be deemed an issuance of the underlying voting securities until such exercise, conversion or exchange, (ii) New Securities shall not include securities issuable in connection with any stock split, stock dividend or recapitalization of Holdings where such securities are issued to all shareholders of Holdings on a proportionate basis and (iii) in the case of a proposed public offering as required to maintain an Ownership which the price is not known as of the time the Holdings Notice is given, the Holdings Notice shall specify the range of expected prices as determined in good faith by Holdings. With respect to any such issuance of New Securities, PMI shall have, as hereinafter provided, the option to purchase from Holdings for cash up to the number of securities of the same class and/or series as the New Securities such that after giving effect to the issuance of New Securities (including the issuance to PMI pursuant to the preemptive rights in this Section 5(a) and including any related issuance resulting from the exercise of preemptive rights by any unrelated Person with respect to the same issuance) PMI’s Voting Percentage would equal PMI’s Voting Percentage calculated without giving effect to the issuance of New Securities and any related issuance resulting from the exercise of preemptive rights with respect to the same issuance, in each case at the price per share and on the other terms stated in the Holdings Notice (except that (i) if the Pricing Condition is met with respect to such Preemptive Right OfferingNew Securities are issued for consideration other than cash, at PMI shall pay the lesser of (a) 15% Fair Market Value thereof and (b) its Ownership Percentage immediately prior to such Preemptive Right Offering, or (ii) if the Pricing Condition Holdings Notice sets forth a range of prices, PMI shall have the option to purchase the applicable portion of the New Securities at the price the New Securities are sold to the public in connection with such public offering, it being understood, however, that in the event such price falls outside the range set forth in the Holdings Notice, the Company shall again comply with this Section 5 prior to issuing the New Securities). In the case of a proposed public offering as to which the price is not met known as of the time the Holdings Notice is given, the Holdings Notice shall specify the range of expected prices as determined in good faith by Holdings. Notwithstanding anything herein to the contrary, with respect to any issuances of New Securities pursuant to the exercise of options, rights or other awards under any employee, officer or director benefit plans or arrangements, (i) the Holdings Notice shall only be required within ten days following each December 31 and shall be made in respect of all such Preemptive Right Offeringissuances made during the preceding one year period ending on such December 31 (except with respect to the first such notice after the Effective Date, its Ownership Percentage immediately prior which shall relate only to issuances made during the period from the Effective Date through such Preemptive Right Offering, in each case, on December 31) and (ii) the same terms and conditions that are applicable to such New Securities, at a price per share of the New Securities shall be deemed to be the average closing price for such New Securities for the 30-trading period ending on the relevant December 31; provided, however, that if no such average closing price is available because the New Securities are not publicly traded or security equal to otherwise, the price paid by per share shall be the purchaser(s) in such issuance Fair Market Value of the New Securities (such shares, the “Preemptive Right Shares”), provided that Purchaser shall not be entitled to acquire Preemptive Right Shares pursuant to this Section 6.1 to the extent that the issuance of such Preemptive Right Shares to Purchaser would require approval of the stockholders of the Company pursuant to the rules and listing standards of the Principal Market, in which the Company may in its discretion consummate the proposed issuance of New Securities in such Preemptive Right Offering to other Persons prior to obtaining approval of the stockholders of the Company (subject to compliance with Section 6.3 below). The Purchaser’s right to participate in Preemptive Right Offerings shall terminate following a Termination Event. Notwithstanding the foregoing, the Purchaser may not participate in a Preemptive Right Offering that occurs within six months following a sale or other disposition for value by the Purchaser of any of the shares of Common Stock purchased pursuant to the Common Stock Purchase Agreementmeasured on December 31.

Preemptive Right. 6.1 At (a) If the Company proposes to issue, sell or grant rights to acquire for cash any time after the date hereof and subject Equity Interests, excluding any Preemptive Issuances to the extent subscribed to by Investors under the following sentencesentence or any Excluded Offering (an "Eligible Offering"), then the Company shall be obligated to offer each Eligible Shareholder the right to purchase at the same price and on substantially the same terms as the proposed issuance, sale or grant such Eligible Shareholder's Proportionate Percentage of the securities to be sold in the Eligible Offering pursuant to the procedures set forth in Section 4.9(b). Notwithstanding anything in this Section 4.9(a) to the contrary, if the Company proposes to issue any New Securities issue, sell or grant rights to acquire for cash (a “Preemptive Right Offering”)any Equity Interests, the Purchaser Heartland Entities (and such other Investors as Heartland may designate) shall have the right (but not the obligation) be entitled to purchase up Equity Interests, without such issuance, sale or grant being subject to such number of New Securities as required to maintain an Ownership Percentage (i) if the Pricing Condition is met with respect to such Preemptive Right Offering, at the lesser of (a) 15% and (b) its Ownership Percentage immediately prior to such Preemptive Right Offering, or (ii) if the Pricing Condition is not met with respect to such Preemptive Right Offering, its Ownership Percentage immediately prior to such Preemptive Right Offering, in each caseany other Shareholder's preemptive rights under this Section 4.9, on the same terms and conditions that are applicable to such New Securities, at a price per share first issuances (whether one or security more) (the "Preemptive Issuances") of Equity Interests for which the Company receives aggregate gross proceeds of $108,604,834 less an amount equal to the price paid by the purchaser(s) in such issuance of New Securities (such shares, the “Preemptive Right Shares”), provided that Purchaser shall not be entitled to acquire Preemptive Right Shares pursuant to this Section 6.1 to the extent that the issuance of such Preemptive Right Shares to Purchaser would require approval of the stockholders of the Company pursuant to the rules and listing standards of the Principal Market, in which the Company may in its discretion consummate the proposed issuance of New Securities in such Preemptive Right Offering to other Persons prior to obtaining approval of the stockholders of the Company (subject to compliance with Section 6.3 below). The Purchaser’s right to participate in Preemptive Right Offerings shall terminate following a Termination Event. Notwithstanding the foregoing, the Purchaser may not participate in a Preemptive Right Offering that occurs within six months following a sale or other disposition for value by the Purchaser of any of the shares of Common Stock purchased common stock of the Company Transferred by the Family Shareholders pursuant to Section 3.1(a)(i). Until the Common Stock Purchase Agreementthird anniversary of the Effective Time, the Investors will be permitted to exercise their preemptive rights under the preceding sentence on Preemptive Issuances at the Initial Price. On and after the third anniversary of the Effective Time, the Investors will be permitted to exercise their preemptive rights on Preemptive Issuances at the price paid for the Equity Interests by any unaffiliated third party at such time or, if no such price has been paid at such time, at fair market value. The preemptive rights to purchase under this Section 4.9(a) may be assigned by any Eligible Shareholder to its Direct Permitted Transferees.

Preemptive Right. 6.1 At any time after the date hereof and subject to the following sentence, if In case the Company proposes at any time to issue or sell, on or prior to December 31, 2014, any New Securities for cash Units or any options, warrants, or other rights to purchase Units or any securities convertible into Units (other than securities issued in a public offering) (the “Offered Securities”) in a transaction in which OMEX or any Affiliate thereof will acquire Offered Securities, the Company shall, no later than ten (10) days prior to the consummation of such transaction (a “Preemptive Right OfferingRights Transaction”), give notice in writing (the Purchaser “Preemptive Rights Offer Notice”) of such Preemptive Rights Transaction to the Buyer. The Preemptive Rights Offer Notice shall have describe the right proposed Preemptive Rights Transaction, identify the proposed purchaser, and contain an offer (but not the obligation“Preemptive Rights Offer”) to purchase up sell to such the Buyer, at the same consideration to be paid by the proposed purchasers, that number of New Offered Securities as required to maintain an Ownership Percentage Buyer’s ownership percentage of the fully-diluted Units in effect as of the date of the Preemptive Rights Offer Notice (i) if the Pricing Condition is met with respect to such Preemptive Right Offering, at the lesser of (a) 15% and (b) its Ownership Percentage immediately prior to such Preemptive Right Offering, or (ii) if the Pricing Condition is not met with respect to such Preemptive Right Offering, its Ownership Percentage immediately prior to such Preemptive Right Offering, in each case, on the same terms and conditions that are applicable to such New Securities, at a price per share or security equal to the price paid by the purchaser(s) in such issuance of New Securities (such shares, the “Preemptive Right SharesMaximum Offer Amount”), provided that Purchaser shall not be entitled to acquire Preemptive Right Shares pursuant to this Section 6.1 to the extent that the issuance of such Preemptive Right Shares to Purchaser would require approval of the stockholders of the Company pursuant to the rules and listing standards of the Principal Market, in which the Company may in its discretion consummate the proposed issuance of New Securities in such Preemptive Right Offering to other Persons prior to obtaining approval of the stockholders of the Company (subject to compliance with Section 6.3 below). The Purchaser’s right Buyer may subscribe for all or a portion of its Maximum Offer Amount on or prior to participate the 30th day following the date of sale of the Offered Securities to the initial purchasers. When the Offered Securities are accepted in Preemptive Right Offerings shall terminate following a Termination Event. Notwithstanding the foregoingmanner set forth in this Section 6.2, the Purchaser may not participate in a Preemptive Right Offering that occurs within six months following a sale or other disposition for value Company shall, as promptly as practicable but no later than twenty (20) days after acceptance by the Purchaser Buyer of any its subscription portion of the shares Maximum Offer Amount, issue certificates representing the applicable number of Common Stock purchased pursuant Offered Securities (free of all liens and encumbrances) to the Common Stock Purchase AgreementBuyer against delivery by such holder of the consideration payable therefor.