Right of First Offer Provided that no Event of Default has occurred under the Lease, Landlord hereby grants Tenant a right (“First Right”) to lease, during the initial Extended Term each of (i) approximately 23,455 rentable square feet of office space known as Suite No. 100, and/or (ii) approximately 18,351 rentable square feet of office space known as Suite No. 150 in the building located at 0000 Xxxxxxx Xxxx Drive, San Diego, California and shown on Exhibit A hereto (each, “First Right Space”) in accordance with and subject to the provisions of this Section; provided that this First Right shall cease to be effective during the final 12 months of the Extended Term unless and until Tenant exercises its extension option set forth in Section VIII.C above (or is then negotiating alternate terms for the extension of the Lease). Except as otherwise provided below, prior to leasing each First Right Space, or any portion thereof, to any other party during the period that this First Right is in effect and after determining that the existing tenant in the applicable First Right Space will not extend or renew the term of its lease, Landlord shall give Tenant written notice of the basic economic terms including but not limited to the Basic Rent, term, operating expense base, security deposit, and tenant improvement allowance (collectively, the “Economic Terms”), upon which Landlord is willing to lease such particular First Right Space to Tenant or to a third party; provided that the Economic Terms shall exclude brokerage commissions and other Landlord payments that do not directly inure to the tenant’s benefit. Further, if the First Right is exercised by Tenant during the first eighteen (18) months of the Extended Term, Tenant shall not be required to provide any security deposit if (i) Tenant is not then otherwise required to provide any security deposit with respect to the then current Premises, and (ii) Tenant’s net worth at the time the First Right is exercised is not less than 90% of its net worth as of the date hereof. If Tenant exercises any First Right during the initial 18 months of the Extended Term, the term for the applicable First Right Space shall be for a term equal to the then unexpired portion of the Term of the Lease and the Economic Terms shall be upon the same economic terms as the original Premises leased hereunder (including without limitation, the applicable Monthly Rate per square foot as set forth in Section II above). If Landlord intends to lease other office space in addition to the First Right Space as part of a single transaction, then Landlord’s notice shall so provide and all such space shall collectively be subject to the provisions of this Section VIII.D. Within 5 business days after receipt of Landlord’s notice, Tenant must give Landlord written notice pursuant to which Tenant shall elect to (i) lease all, but not less than all, of the space specified in Landlord’s notice (the “Designated Space”) upon such Economic Terms and the same non-Economic Terms as set forth in this Lease; (ii) refuse to lease the Designated Space, specifying that such refusal is not based upon the Economic Terms, but upon Tenant’s lack of need for the Designated Space, in which event Landlord may lease the Designated Space upon any terms it deems appropriate; or (iii) refuse to lease the Designated Space, specifying that such refusal is based upon said Economic Terms, in which event Tenant shall also specify revised Economic Terms upon which Tenant shall be willing to lease the Designated Space. In the event that Tenant does not so respond in writing to Landlord’s notice within said period, Tenant shall be deemed to have elected clause (ii) above. In the event Tenant gives Landlord notice pursuant to clause (iii) above, Landlord may elect to either (x) lease the Designated Space to Tenant upon such revised Economic Terms and the same other non-Economic Terms as set forth in this Lease, or (y) lease the Designated Space to any third party upon Economic Terms which are not materially more favorable to such party than those Economic Terms proposed by Tenant. Should Landlord so elect to lease the Designated Space to Tenant (or if Tenant exercises its right under Section VIII.D(i) above), then Landlord shall promptly prepare and deliver to Tenant an amendment to this Lease consistent with the foregoing, and Tenant shall execute and return same to Landlord within 10 days. If either Tenant or Landlord fails to timely deliver such amendment the other party may specifically enforce their respective rights hereunder, and/or to pursue any other available legal remedy. Notwithstanding the foregoing, it is understood that Tenant’s First Right shall be subject to those certain extension or expansion rights previously granted by Landlord to any third party tenant in the Building, and Landlord shall in no event be obligated to initiate this First Right prior to leasing any portion of the First Right Space to the then-current occupant thereof. Tenant’s rights under this Section shall be personal to the original Tenant named in this Lease and may not be assigned or transferred (except in connection with a Permitted Transfer of this Lease as described in Section 9.4 of the Lease). Any other attempted assignment or transfer shall be void and of no force or effect. Tenant’s election not to lease any Designated Space relating to one First Right Space shall not waive, limit, alter, or impair Tenant’s First Right with respect to the other First Right Space.
Company Right of First Refusal (a) Before the Warrant, any portion thereof or any Shares may be sold or otherwise transferred by the Holder, the Company shall have a right of first refusal to purchase the Warrant, such portion thereof and/or any such Shares, as the case may be, on the terms and conditions set forth in this Section 11.
(b) If the Holder proposes to sell or otherwise transfer the Warrant, any portion thereof or any number of the Shares it holds at such time to any third party other than one that it controls, is controlled by, or is under common control with (each an "Affiliate"), the Holder shall deliver to the Company a written notice ("Sale Notice"), in accordance with Section 15, stating (i) the Holder's bona fide intention to sell or otherwise transfer the Warrant, any portion thereof or a certain number of Shares (collectively, the "Transfer Interests"), as the case may be, (ii) the name of the proposed purchaser or other transferee (the "Proposed Buyer"), and (iii) the bona fide cash price or other consideration for which the Holder proposes to transfer the Transfer Interests (the "Offered Price"), and the Holder shall offer to sell the Transfer Interests to the Company at the Offered Price.
(c) The Company may, at any time within sixty (60) days after receipt by the Company of a Sale Notice, elect to purchase the Transfer Interests by giving written notice to the Holder, in accordance with Section 15, at a purchase price equal to the Offered Price (the "Purchase Price"). If the Offered Price includes consideration other than cash, the cash equivalent value of the non-cash consideration shall be determined by the board of directors of the Company in good faith.
(d) Payment of the Purchase Price shall be made in cash (by check) within sixty (60) days after the date of the Company's election to purchase the Transfer Interests.
(e) If the Transfer Interests are not purchased by the Company as provided herein, then the Holder may sell or otherwise transfer the Transfer Interests to the Proposed Buyer at the Offered Price or at a higher price, provided that such sale or other transfer (i) is consummated within six (6) months after the date of the Sale Notice, and (ii) is in accordance with all the terms of this Agreement and all other agreements between the Holder and the Company. If the Transfer Interests are not transferred to the Proposed Buyer within such six-month period in accordance with the preceding sentence, a new Sale Notice shall be given to the Company, and the Company shall again be offered a right of first refusal under this Section 11 before the Warrant, any portion thereof or any Shares, as the case may be, may be sold or otherwise transferred.
Right of First Refusal (a) The Shares acquired pursuant to the exercise of this Option may be sold by the Optionee only in compliance with the provisions of this Section 7, and subject in all cases to compliance with the provisions of Section 6(b) hereof. Prior to any intended sale, Optionee shall first give written notice (the “Offer Notice”) to the Company specifying (i) his or her bona fide intention to sell or otherwise transfer such Shares, (ii) the name and address of the proposed purchaser(s), (iii) the number of Shares the Optionee proposes to sell (the “Offered Shares”), (iv) the price for which he or she proposes to sell the Offered Shares, and (v) all other material terms and conditions of the proposed sale.
(b) Within thirty (30) days after receipt of the Offer Notice, the Company or its nominee(s) may elect to purchase all or any portion of the Offered Shares at the price and on the terms and conditions set forth in the Offer Notice by delivery of written notice (the “Acceptance Notice”) to the Optionee specifying the number of Offered Shares that the Company or its nominees elect to purchase. Within fifteen (15) days after delivery of the Acceptance Notice to the Optionee, the Company and/or its nominee(s) shall deliver to the Optionee payment of the amount of the purchase price of the Offered Shares to be purchased pursuant to this Section 7, against delivery by the Optionee of a certificate or certificates representing the Offered Shares to be purchased, duly endorsed for transfer to the Company or such nominee(s), as the case may be. Payment shall be made on the same terms as set forth in the Offer Notice or, at the election of the Company or its nominees(s), by check or wire transfer of funds. If the Company and/or its nominee(s) do not elect to purchase all of the Offered Shares, the Optionee shall be entitled to sell the balance of the Offered Shares to the purchaser(s) named in the Offer Notice at the price specified in the Offer Notice or at a higher price and on the terms and conditions set forth in the Offer Notice; provided, however, that such sale or other transfer must be consummated within sixty (60) days from the date of the Offer Notice and any proposed sale after such sixty (60) day period may be made only by again complying with the procedures set forth in this Section 7.
(c) The Optionee may transfer all or any portion of the Shares to a trust established for the sole benefit of the Optionee and/or his or her spouse or children without such transfer being subject to the right of first refusal set forth in this Section 7, provided that the Shares so transferred shall remain subject to the terms and conditions of this Option Agreement and no further transfer of such Shares may be made without complying with the provisions of this Section 7.
(d) Any Successor of Optionee pursuant to Section 5 hereof, and any transferee of the Shares pursuant to this Section 7, shall hold the Shares subject to the terms and conditions of this Option Agreement and no further transfer of the Shares may be made without complying with the provisions of this Section 7.
(e) The rights provided the Company and its nominee(s) under this Section 7 shall terminate upon the closing of the initial public offering of shares of the Company’s Class A Common Stock pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission under the Securities Act.
Co-Sale Rights (a) In the event any Member (for purposes of this Section 11.15, the “Selling Member”) proposes to Transfer all or any portion of its Units (for purposes of this Section 11.15, the “Co-Sale Units”) other than pursuant to a Permitted Transfer, the Selling Member shall deliver a written notice (the “Co-Sale Notice”) to each other Member (each, a “Co-Sale Offeree”) at least thirty (30) days prior to making such Transfer describing the general terms and conditions of the proposed Transfer, including the purchase price for the Co-Sale Units, the proposed purchaser(s), the closing date for the sale and the portion of the Selling Member’s Units to be Transferred (the “Co-Sale Participation Percentage”). Each Co-Sale Offeree may elect to participate in the contemplated Transfer at the same price and on the same terms and conditions by delivering written notice to the Selling Member within fifteen (15) days after delivery of the Co-Sale Notice, which notice shall specify the percentage of its Units that such Co-Sale Offeree desires to include in such proposed Transfer, provided that such percentage shall not exceed the Co-Sale Participation Percentage. If a Co-Sale Offeree does not give such notice prior to the expiration of the fifteen (15)-day period for giving such notice, then the Selling Member may Transfer the Co-Sale Units to any Person on terms and conditions that are no more favorable to the Selling Member than those set forth in the Co-Sale Notice at any time within ninety (90) days after expiration of such fifteen (15)-day period for giving notice (provided, that if any governmental or other third party approval is required with respect to such Transfer, then such period shall be extended until a reasonable time after such approvals are obtained). Any Co-Sale Units not Transferred by the Selling Member during such ninety (90)-day period (as such period may be extended pursuant to the immediately preceding sentence) shall again be subject to the provisions of this Section 11.15 prior to any subsequent Transfer.
(b) To the extent that one or more Co-Sale Offerees exercises its right of participation pursuant to Section 11.15(a), then, at the Selling Member’s option, either the percentage of Units that the Selling Member and each other participating Co-Sale Offeree may sell in the transaction shall be reduced below the applicable Co-Sale Participation Percentage to a percentage equal to the Selling Member’s or the participating Co-Sale Offeree’s (as applicable) pro rata percentage of the total Units proposed to be sold in the Transfer, or the aggregate Units to be sold in the transaction shall be increased to accommodate the Units of those participating Co-Sale Offerees pursuant to this Section 11.15.
(c) The Selling Member shall not Transfer any Co-Sale Units to any prospective transferee if such prospective transferee declines to purchase Units from participating Co-Sale Offerees, unless the Selling Member acquires from each such participating Co-Sale Offeree (on the terms set forth in the Co-Sale Notice) its pro rata percentage of the total Units proposed to be sold in the Transfer (or, if less, the percentage of its Units that such Co-Sale Offeree requested to Transfer to such transferee) on the same price, terms and conditions as would be applicable in a direct sale of such Units to the proposed transferee. The Selling Member will endeavor to facilitate the purchase by any prospective transferee of Units held by a Co-Sale Offeree which are not eligible for co-sale pursuant to this Section 11.15 if and to the extent such Co-Sale Offeree wishes to include such interests in the Transfer, but neither the Selling Member nor any other Person shall be liable if the prospective transferee declines to do so.
Right of First Refusal and Co-Sale Agreement Each Purchaser and the other stockholders of the Company named as parties thereto shall have executed and delivered the Right of First Refusal and Co-Sale Agreement.
Co-Sale Right 3.1 An Offeror may not sell any of the Offered Shares until each of the Investors shall have been given the right (a “Co-Sale Right”), exercisable by Notice delivered to the Company and the Offeror within twenty (20) days from the date of the Company Notice, to sell to the proposed purchaser or purchasers (including, as applicable, the Company and any Electing Investors), upon the same terms and conditions offered by the Offeror, a number of shares up to the Investor’s Co-Sale Pro Rata Share of the Offered Shares (the “Co-Sale Shares”).
3.2 Any Investor who fails to notify the Company and Offeror within twenty (20) days after the Sale Notice of the exercise of the Investor’s Co-Sale Right (or who has exercised purchase rights under Section 2), shall have thereby waived Co-Sale Rights with respect to the Offered Shares.
3.3 If any Investor has made a timely exercise of a Co-Sale Right, to the extent that any prospective purchaser or purchasers prohibits such assignment or otherwise refuses to purchase shares or other securities from an Investor exercising its rights of co-sale hereunder (a “Co-Selling Investor”), the Offeror shall not sell to such prospective purchaser or purchasers any Shares unless and until, simultaneously with such sale, the Offeror purchases such Co-Sale Shares from such Co-Selling Investor for the same consideration and on the same terms and conditions as the proposed transfer described in the Sale Notice.
3.4 Each Co-Selling Investor shall, promptly after exercising a Co-Sale Right, deliver to the Offeror for transfer to the prospective purchaser or purchasers one or more certificates, properly endorsed for transfer, evidencing the Co-Sale Shares, Series A-1 Shares convertible into Co-Sale Shares or any combination of the two (and, if the Offered Shares included Series A Shares, the number of Series A Shares comprising Co-Sale Shares). If a prospective purchaser objects to the delivery of preferred stock in lieu of Common Stock, any Co-Selling Investor shall convert the Series A-1 Shares into Common Stock and deliver Common Stock as provided above. The Company agrees to make any such conversion concurrent with the actual sale of such shares to the proposed purchaser. Series A Shares may not be delivered to exercise a Co-Sale Right with respect to offered Common Stock or offered Series A-1 Shares.
3.5 If the Investors have not elected to purchase all of the Available Shares pursuant to Section 2, the Offeror may, during the 60-day period following the Settlement Date, offer the remaining unsold portion of the Available Shares (as reduced by any exercised Co-Sale Rights, the “Salable Shares”), along with any Co-Sale Shares, on terms and conditions (other than the time permitted to close the purchase) no more favorable to the Offeree than those specified in the Sale Notice, to the purchaser or purchasers identified in the Sale Notice. If the Offeror does not enter into an agreement for the sale of any of the Salable Shares and Co-Sale Shares within such period, or if such agreement is not consummated within thirty (30) days of its execution, the right provided under Sections 2 and 3 shall be revived as to the unsold Offered Shares, which shall not be sold unless first reoffered to the Company and the Investors in accordance with Sections 2 and 3. Any partial sale of Shares made pursuant to this Section 3.5 shall be allocated on a pro rata basis among Salable Shares and Co-Sale Shares.
3.6 On consummation of the sale of the Offered Shares and Co-Sale Shares, the Offeror shall transfer to the purchaser the stock certificate or certificates that the Investor has delivered to the Offeror pursuant to Section 3.4. The Offeror shall, upon receipt, remit to the Co-Selling Investor that portion of the sale proceeds to which such Investor is entitled by reason of its participation in such sale. To the extent that any prospective purchaser or purchasers prohibit such assignment or otherwise refuse to purchase shares or other securities from a Co-Selling Investor, the Offeror shall not sell any Offered Shares to the prospective purchaser unless, simultaneously with such sale, the Offeror purchases the Co-Sale Shares from such Investor.
General Partner Right of First Refusal The transferring Partner shall give written notice of the proposed transfer to the General Partner, which notice shall state (i) the identity of the proposed transferee, and (ii) the amount and type of consideration proposed to be received for the transferred Partnership Units. The General Partner shall have ten (10) days upon which to give the transferring Partner notice of its election to acquire the Partnership Units on the proposed terms. If it so elects, it shall purchase the Partnership Units on such terms within ten (10) days after giving notice of such election. If it does not so elect, the transferring Partner may transfer such Partnership Units to a third party, on economic terms no more favorable to the transferee than the proposed terms, subject to the other conditions of this Section 11.3.
Exercise of Right of First Refusal At any time within thirty (30) days after receipt of the Notice, the Company and/or its assignee(s) may, by giving written notice to the Holder, elect to purchase all, but not less than all, of the Shares proposed to be transferred to any one or more of the Proposed Transferees, at the purchase price determined in accordance with subsection (c) below.
Assignment of Right of First Refusal The Company shall have the right to assign the Right of First Refusal at any time, whether or not there has been an attempted transfer, to one or more persons as may be selected by the Company.
Grant of Right of First Refusal Except as provided in Section 12.7 below, in the event the Optionee, the Optionee's legal representative, or other holder of shares acquired upon exercise of the Option proposes to sell, exchange, transfer, pledge, or otherwise dispose of any Vested Shares (the "TRANSFER SHARES") to any person or entity, including, without limitation, any shareholder of the Participating Company Group, the Company shall have the right to repurchase the Transfer Shares under the terms and subject to the conditions set forth in this Section 12 (the "RIGHT OF FIRST REFUSAL").
