Right of First Offer. Subject to the terms and conditions of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities. (a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities. (b) By notification to the Company within thirty (30) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c). (c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1. (d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
Appears in 6 contracts
Samples: Investors Rights Agreement (ECMOHO LTD), Share Subscription Agreement (ECMOHO LTD), Preferred Share Purchase Agreement (ECMOHO LTD)
Right of First Offer. Subject to the terms and conditions of specified in this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities3, the Company shall hereby grants to each Investor a right of first offer such New Securities with respect to future sales by the InvestorsCompany of its Securities. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its partners and Affiliates in such proportions as it deems appropriate, among . Each time the Company proposes to offer any Securities in a Financing (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereofbelow), and (z) agrees the Company shall first make an offering of such Securities to purchase at least such number of New Securities as are allocable hereunder to each Investor in accordance with the Investor holding the fewest number of Investor Shares and any other Derivative Securities.following provisions:
(a) The Company shall give deliver a notice (the “Offer Notice”) to each Investor, Investor stating (i) its bona fide intention to offer such New SecuritiesSecurities for sale, (ii) the number of such New Securities to be offeredoffered (the “Offered Securities”), and (iii) the price and termsprice, if any, upon for which it proposes to offer such New Securities, (iv) the terms of such offer and (v) the Offer Amount (as defined below).
(b) By notification to the Company within thirty Within fifteen (3015) calendar days after receipt of the Offer Notice is givenNotice, each Investor may elect to purchase or otherwise acquirepurchase, at the price and on the terms specified in the Offer Notice, such Securities in an amount up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held Offer Amount by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of providing the Company then outstanding (assuming full conversion and/or exercise, as applicable, with written notice of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)its election.
(c) If all New Securities referred An election by an Investor pursuant to in the Offer Notice are not elected Section 3.1(b) to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New purchase Offered Securities shall not be offered considered a binding commitment on the Investor unless and until the Company receives binding commitments to purchase on the terms and conditions contained in the Notice substantially all of the Offered Securities which the Investors have not elected to purchase. Notwithstanding the foregoing, the Company and each of the Investors acknowledge and agree that Lighthouse shall have the opportunity to invest not less than $250,000 in connection with the first reoffered Financing completed after the date of this Agreement that involves the sale and issuance by the Company of shares of the Company’s convertible preferred stock with aggregate gross proceeds to the Investors in accordance with this Section 8.1.
(d) The Company of at least $3 million. In the event that Lighthouse’s right of first offer to purchase Offered Securities as otherwise set forth in this Section 8.1 shall 3.1 would not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents)permit such $250,000 investment, (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities then each of the Company issued under Investors agrees that its respective right to purchase Offered Securities pursuant to this Section 3.1 may be cut-back (proportionately with all other Investors based on the Employee Share Option Plannumber of shares of Eligible Securities held by the Investors) in such amounts as may be necessary to permit the exercise of Lighthouse’s rights as set forth herein.
Appears in 6 contracts
Samples: Investor Rights Agreement (Fluidigm Corp), Investor Rights Agreement (Fluidigm Corp), Series E Preferred Stock Purchase Agreement (Fluidigm Corp)
Right of First Offer. Subject to the terms and conditions of specified in this Section 8.1 4.1 and applicable securities Lawslaws, if in the event the Company proposes to offer or sell any New Additional Equity Securities, the Company shall first offer make an offering of such New Additional Equity Securities (the “Offered Securities”) to the InvestorsFounder Holdcos and the Investors (the “Offerees”) in accordance with the following provisions of this Section 4.1. Each Investor Any Offeree shall be entitled to apportion the right of first offer hereby granted to it among their partners, members and Affiliates in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice deliver a notice, in accordance with the provisions of Section 8.4 hereof, (the “Offer Notice”) to each Investor, the Offerees stating (i) its bona fide intention to offer such New Offered Securities, (ii) the number of such New Offered Securities to be offeredoffered to the Offerees, and (iii) the price and terms, if any, upon which it proposes to offer such New Offered Securities.
(b) By written notification to received by the Company Company, within thirty twenty (3020) calendar days after mailing of the Offer Notice is givenNotice, each Investor Offeree may elect to purchase or otherwise acquireobtain its pro-rata share of the Offered Securities, at the price and on the terms specified in the Offer Notice. For purpose of this Section 4.1(b), up to that portion the “pro-rata share” shall be the ratio of such New Securities which equals (a) the proportion that the number of Ordinary Shares then (calculated on a fully-diluted and as-converted basis) held by such Investor Offeree, bearing to (including all Ordinary Shares then issuable (directly or indirectlyb) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total number of Ordinary Shares of the Company (calculated on a fully-diluted and as-converted basis) then outstanding (assuming full conversion and/or exercise, as applicable, immediately prior to the issuance of all Series A Preferred Shares and any other Derivative Securities then outstanding)Additional Equity Securities. At the expiration of such 30-day period, the The Company shall promptly notify promptly, in writing, inform each Investor Offeree that elects to purchase or acquire all the shares available to it (each, a “Fully Fully-Exercising InvestorHolder”) of any other InvestorOfferee’s failure to do likewise. During the ten (10) day-day period commencing immediately after the Company has given receipt of such noticeinformation, each Fully Fully-Exercising Investor may, by giving notice Holder shall be entitled to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to obtain that portion of the New Offered Securities for which any of the Investors Offerees were entitled to subscribe but that which were not subscribed for by the Investors Offerees which is equal to the proportion that calculated by dividing the number of Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, held by such Fully Fully-Exercising Investor bears to Holder by the total number of Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, held by all Fully Fully-Exercising Investors Holders who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)Offered Securities.
(c) If all New Offered Securities referred to in the Offer Notice are not elected to be purchased or acquired obtained as provided in Section 8.1(b)4.1(b) hereof, the Company may, during the ninety (90-) day period following the expiration of the periods period provided in Section 8.1(b)4.1(b) hereof, offer and sell the remaining unsubscribed portion of such New Offered Securities (collectively, the “Refused Securities”) to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Offered Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Offered Securities shall not be offered to any Person unless first reoffered to the Investors Offerees in accordance with this Section 8.14.1.
(d) The right of first offer set forth in this Section 8.1 shall 4.1 may not be applicable assigned or transferred except that such right is assignable by an Investor to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities any Affiliate of the Company issued under the Employee Share Option Plansuch Investor.
Appears in 5 contracts
Samples: Shareholder Agreements, Shareholders Agreement (Momo Inc.), Series D Preferred Share Purchase Agreement (Momo Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to (i) each Major Investor, (ii) each other Investor that, individually or together with such Investor’s Affiliates, holds at least 100,000 shares of Registrable Securities (as adjusted for any stock split, stock dividend, combination or other recapitalization or reclassification effected after the Investorsdate hereof) and (iii) each Key Holder (each a “First Offer Participant,” and collectively, the “First Offer Participants”). Each Investor A First Offer Participant shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, itself and (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”)Affiliates; provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Amended and Restated Voting Agreement and Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” or “Key Holder,” as applicable, under each such agreement (provided that that, except as set forth in Section 5.7, any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor First Offer Participant holding the fewest number of Investor Shares shares of Common Stock (including all shares of Class A Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative SecuritiesSecurities then held by such First Offer Participant).
(a) The Company shall give notice (the “Offer Notice”) to each InvestorFirst Offer Participant, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, offered and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor First Offer Participant may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor First Offer Participant (including all Ordinary Shares shares of Class A Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such InvestorFirst Offer Participant) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor First Offer Participant that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising InvestorParticipant”) of any other InvestorFirst Offer Participant’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor Participant may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors First Offer Participants were entitled to subscribe but that were not subscribed for by the Investors First Offer Participants which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor Participant bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors Participants who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors First Offer Participants in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), Certificate of Incorporation) and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option PlanIPO.
Appears in 5 contracts
Samples: Investors’ Rights Agreement (Seer, Inc.), Investors’ Rights Agreement (Seer, Inc.), Investors’ Rights Agreement (Seer, Inc.)
Right of First Offer. (a) Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor and LPE II (“LPE II” and each Major Investor and LPE II, a “Preemptive Rights Holder”). Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, itself and (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”)Affiliates; provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of DirectorsBoard, and (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement (as such terms are defined in the Purchase Agreement), as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights as a Major Investor or Preemptive Rights Holder under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(ab) The Company shall give notice (the “Offer Notice”) to each InvestorPreemptive Rights Holder, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(bc) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor Preemptive Rights Holder may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor Preemptive Rights Holder (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such InvestorPreemptive Rights Holder) bears to the total Ordinary Shares Common Stock of the Company then outstanding held by all Preemptive Rights Holders (assuming full including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of all Series A the Preferred Shares Stock and any other Derivative Securities then outstandingheld by all Preemptive Rights Holders). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor Preemptive Rights Holder that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other InvestorPreemptive Rights Holder’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors Preemptive Rights Holders were entitled to subscribe but that were not subscribed for by the Investors Preemptive Rights Holders which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares, or such greater amount of such New Securities as may be available as a result of any Fully Exercising Investor not fully exercising their right to acquire additional New Securities. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(c) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)Subsection 4.1(c) or such later date as is reasonably required to obtain any required regulatory approvals.
(cd) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(c), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(c), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors Preemptive Rights Holders in accordance with this Section 8.1Subsection 4.1.
(de) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Series B Preferred Stock issued in an initial public offering pursuant to the Purchase Agreement; and (iii) equity securities shares of Common Stock issued in the Company issued under the Employee Share Option PlanIPO.
(f) The rights provided in this Subsection 4.1 may not be assigned or transferred by LPE II.
Appears in 4 contracts
Samples: Investors’ Rights Agreement (Gossamer Bio, Inc.), Investors’ Rights Agreement (Gossamer Bio, Inc.), Investors’ Rights Agreement
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and the Amended & Restated Voting Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares shares of Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined shares of Common Stock issued in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option PlanIPO.
Appears in 4 contracts
Samples: Investors’ Rights Agreement (Gin & Luck Inc.), Investors’ Rights Agreement (Gin & Luck Inc.), Investors’ Rights Agreement (Gin & Luck Inc.)
Right of First Offer. Subject (a) In the event that the Investor or its Affiliates desires to sell Shares pursuant to Section 4.1(b) (other than Section 4.1(b)(i) or 4.1(b)(ii)) in an amount constituting more than 5% of the issued and outstanding shares of Common Stock in a single or series of related transactions, the Investor shall first offer such Shares for purchase by the Company by promptly notifying the Company in writing of such offer, setting forth the number of Shares proposed to be sold (the “Offer Shares”), the terms and conditions of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof)sale, and (z) agrees to purchase at least the price or method of determining such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice price (the “Offer NoticeROFO Price”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities).
(b) By notification The Company shall have up to a period of twenty (20) days (the “ROFO Option Period”) after the receipt of such notice within which to notify the Investor in writing that it wishes to purchase the Offer Shares at the ROFO Price and upon the terms and conditions set forth in the Investor’s notice. If the Company gives such written notice within the ROFO Option Period then it shall have thirty (30) days after it gives such notice to do all things necessary to consummate such acquisition of the Offer Notice is givenShares, each including entering into agreements relating to such acquisition. The Investor shall cooperate with the Company in obtaining all consents and approvals necessary to consummate the acquisition and shall execute and deliver such customary agreements as may elect be reasonably requested by the Company. If the Company receives such consents and approvals and enters into such agreements as are necessary to consummate such acquisition of the Offer Shares, then the Investor and its Affiliates, as applicable, shall be obligated to sell to the Company, and the Company shall be obligated to purchase or otherwise acquirefrom the Investor and its Affiliates, as applicable, the Offer Shares at the price and on the terms specified and conditions set forth in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred the Company does not give written notice to the Investor within the ROFO Option Period or notifies the Investor in writing that it does not wish to purchase the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b)Shares, the Company mayInvestor shall be free to secure a bona fide offer for the Offer Shares from a third party and sell the Offer Shares to such third party at a price equal to or greater than the ROFO Price, during provided, that (i) such sale to the bona fide third party is consummated within ninety (90-day period following ) days after the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons ROFO Option Period at a price not less than, and upon the same terms and conditions, no more favorable to the offeree than, those specified third party than were set forth in the Offer Notice. If Investor’s notice to the Company does not enter into an agreement for (it being agreed by the sale of the New Securities within such period, or Investor that if such agreement sale is not consummated within thirty (30) days of the execution thereofsuch 90-day period, the right Investor must re-commence the procedures provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable 4.3 if it wishes to (i) Exempted Securities (as defined in sell the Company’s Constitutive DocumentsShares), (ii) Ordinary Shares issued the Investor notifies the Company in an initial public offering writing of the name, address, telephone number and fax number of the transferee, along with the names and/or title of a “contact person” at such transferee, and (iii) equity securities the transferee of the Company issued under Investor and its Affiliates executes a counterpart copy of this Agreement and thereby agrees prior to the Employee Share Option Plansale, to be bound by all of the terms and provisions of this Agreement, as though it were the Investor.
Appears in 4 contracts
Samples: Stockholder Agreement (China Investment Corp), Stock Purchase Agreement (China Investment Corp), Stockholder Agreement (Aes Corp)
Right of First Offer. Subject to the terms and conditions specified in this Section 3.4, the Company hereby grants a right of first offer with respect to future private placement sales by the Company of its Shares (as hereinafter defined), as calculated pursuant to Section 3.4(b), (i) first, to D1 and the Janus Investors (together, the “Qualifying Investors”), for so long as any shares of Series F Preferred Stock remain outstanding and the Qualifying Investors continue to collectively hold the majority of the then outstanding shares of Series E Preferred Stock and Series F Preferred Stock, for up to an aggregate number of Shares equivalent to an aggregate total purchase price by all such Qualifying Investors of up to $70,000,000 (the “Maximum ROFO Amount of Shares”), and (ii) thereafter to all other Investors that continue to hold shares of capital stock of the Company, for any remaining Shares not purchased by the Qualifying Investors under (i) above (the “Unpurchased Shares”). For purposes of this Section 8.1 3.4, an Investor includes any partners and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the InvestorsAffiliates of an Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its partners and Affiliates in such proportions as it deems appropriate, among (iso long as such apportionment does not cause the loss of the exemption under Section 4(a)(2) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members of the Act or any other Person having similar exemption under applicable state securities laws in connection with such sale of Shares by the Company. Each time the Company proposes in a private placement to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (the “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial OwnersShares”); provided that , the Company shall first make an offering of such Shares to each such Affiliate or Qualifying Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by in accordance with the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.following provisions:
(a) The Company shall give deliver a notice in accordance with Section 4.6 (the “Offer Notice”) to each Investor, the Qualifying Investors and all other Investors stating (i) its bona fide intention to offer such New SecuritiesShares, (ii) the number of such New Securities Shares to be offered, and (iii) the price price, terms and terms, if any, conditions upon which it proposes to offer such New SecuritiesShares.
(b) By written notification to received by the Company Company, within thirty twenty (3020) calendar days after receipt of the Offer Notice is givenNotice, (i) each Qualifying Investor may elect to purchase or otherwise acquireobtain, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which the Maximum ROFO Amount of Shares that equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then aggregate number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A E Preferred Shares Stock and any other Derivative Securities then Series F Preferred Stock held as of the date hereof, by such Investor) Qualifying Investor bears to the total Ordinary Shares number of shares of Common Stock of the Company then outstanding held as of the date hereof by all Qualifying Investors (assuming full conversion and/or exercise, as applicable, and exercise of all Series A Preferred outstanding convertible and exercisable securities); provided, however, if one Qualifying Investor decides not to purchase all the Shares available to it under this subsection (i), then the other Qualifying Investor (“Fully Exercising QI”) shall be entitled to obtain that portion of the Shares for which the Qualifying Investors were entitled to subscribe but which were not subscribed for, and (ii) any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each remaining Investor that elects may elect to purchase or acquire obtain, up to that portion of the Unpurchased Shares that equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock held as of the date hereof, by such Investor bears to the total number of shares of Common Stock of the Company outstanding as of the date hereof (assuming full conversion and exercise of all outstanding convertible and exercisable securities) plus any shares of Common Stock reserved for issuance under any equity incentive plan approved by the Board of Directors as of the date hereof. The Company shall promptly, in writing, inform each Qualifying Investor and Investor which purchases all the shares Shares available to it (each, a “Fully Fully-Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given receipt of such noticeinformation, each Fully Fully-Exercising Investor may, by giving notice shall be entitled to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to obtain that portion of the New Securities Shares for which the Investors were entitled to subscribe but that which were not subscribed for by the Investors which that is equal to the proportion that the Ordinary Shares number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities Stock then held, by such Fully Fully-Exercising Investor bears to the Ordinary Shares total number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities Stock then held, by all Fully Fully-Exercising Investors who wish to purchase such some of the unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred Shares that the Qualifying Investors and the Investors are entitled to in the Offer Notice obtain pursuant to Section 3.4(b) are not elected to be purchased or acquired obtained as provided in Section 8.1(b)3.4(b) hereof, the Company may, during the ninety (90-) day period following the expiration of the periods period provided in Section 8.1(b)3.4(b) hereof, offer and sell the remaining unsubscribed portion of such New Securities Shares to any Person person or Persons persons at a price not less than, and upon terms no more favorable to the offeree than, than those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities Shares within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities Shares shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1herewith.
(d) The Except with respect to D1’s and the Janus Investors’ rights under Section 3.4(f), the right of first offer in this Section 8.1 3.4 shall not be applicable to to:
(i) Exempted Securities the issuance of securities pursuant to a split or subdivision of the outstanding shares of Common Stock or the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in additional shares of Common Stock or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly, additional shares of Common Stock (hereinafter referred to as “Common Stock Equivalents”) without payment of any consideration by such holder for the additional shares of Common Stock or the Common Stock Equivalents (including the additional shares of Common Stock issuable upon conversion or exercise thereof);
(ii) the issuance of shares of Common Stock or options therefor to employees, consultants, officers, directors or strategic partners (if in transactions with primarily non-financing purposes) of the Company directly or pursuant to a stock option plan or restricted stock purchase plan approved by the Board of Directors of the Company including at least the Series E/F Director (as defined in the Restated Certificate);
(iii) the issuance of shares of Common Stock (A) in a bona fide, firmly underwritten public offering under the Act before which or in connection with which all outstanding shares of Preferred Stock will be automatically converted to Common Stock, or (B) upon exercise of warrants or rights granted to underwriters in connection with such a public offering;
(iv) the issuance of shares of Common Stock pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof or subsequently issued pursuant to this Section 3.4;
(v) the issuance of shares of Common Stock in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Board of Directors of the Company, including at least the Series E/F Director;
(vi) the issuance or sale of stock, warrants or other securities or rights, for other than primarily equity financing purposes, as approved by the Board of Directors of the Company, including at least the Series E/F Director, to entities with which the Company has any of the following bona fide business relationships: (1) joint venture, technology licensing or development activities, or (2) distribution, supply or manufacture of the Company’s Constitutive Documentsproducts or services;
(vii) the issuance or sale of stock, warrants or other securities or rights in connection with commercial credit arrangements, equipment financings, commercial property lease transactions or similar transactions, each as approved by the Board of Directors of the Company, including at least the Series E/F Director; or
(viii) shares of Common Stock issued or issuable in connection with any transaction approved by the Board of Directors of the Company, where such securities so issued are exempted from the right of first offer in this Section 3.4 by the affirmative vote of Investors holding at least a majority of the then outstanding Series F Preferred Stock held by all Investors (voting together as a single class and not as separate series, and on an as-converted basis). In addition to the foregoing, the right of first offer in this Section 3.4 shall not be applicable with respect to any Investor and any subsequent securities issuance, if (i) at the time of such subsequent securities issuance, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) under the Act, and (ii) such subsequent securities issuance is otherwise being offered only to accredited investors.
(e) The right of first offer set forth in this Section 3.4 may not be assigned or transferred, except that such right may be assigned (but only with all related obligations) by a Holder to a transferee or assignee of such rights that (i) is an Affiliate, subsidiary, parent, partner, limited partner, retired partner or stockholder of a Holder, (ii) Ordinary Shares issued in is a Holder’s family member or trust for the benefit of an initial public offering and individual Holder, or (iii) equity after such assignment or transfer, holds at least 100,000 shares of Registrable Securities (subject to appropriate adjustment for stock splits, stock dividends, combinations or the like).
(f) Notwithstanding any provisions herein to the contrary, in the event of a Qualified IPO (as defined in the Restated Certificate), the Company shall use its reasonable efforts, subject to the requirements of all applicable securities laws and regulations, to provide each of D1 and the Janus Investors with a right of first offer with respect to such shares of Common Stock of the Company issued under that either Holder desires to purchase, in each case, up to such number of shares equal to the Employee Share Option Plangreater of (i) $15,000,000 divided by the per share purchase price of the Company’s Common Stock in the Qualified IPO and (ii) fifteen percent (15%) of the total number of shares of Common Stock to be sold in the Qualified IPO. If such right of first offer may not be granted to either Holder, then the Company shall, in good faith and upon the written request of either Holder, consider the sale of an equivalent number of shares of the Company’s Common Stock to either Holder in a private placement transaction concurrent to the Qualified IPO. The Company may not reduce the amount of shares of Common Stock that may be purchased by either D1 or the Janus Investors in the Qualified Financing or a concurrent private placement transaction, unless the same reduction is applied to both D1 and the Janus Investors.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (Sight Sciences, Inc.), Investors’ Rights Agreement (Sight Sciences, Inc.), Investors’ Rights Agreement (Sight Sciences, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (ia) itself, (iib) its Affiliates and (iiic) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights as an Investor under Sections 7.1, 7.2 and 8.1 Subsection 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Preferred Stock to Additional Purchasers pursuant to Subsection 1.3 of the Purchase Agreement.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Subsection 4.1, the Company issued under may elect to give notice to the Employee Share Option PlanInvestors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the New Securities. Each Investor shall have twenty (20) days from the date notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Investor, maintain such Investor’s percentage-ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (MedicaMetrix, Inc/De), Investors’ Rights Agreement (MedicaMetrix, Inc/De), Investors’ Rights Agreement (MedicaMetrix, Inc/De)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Series B Preferred Stock to Additional Purchasers pursuant to Subsection 1.3 of the Purchase Agreement.
(e) The right of first offer set forth in this Subsection 4.1 shall terminate with respect to any Major Investor who fails to purchase, in any transaction subject to this Subsection 4.1, all of such Major Investor’s pro rata amount of the New Securities allocated (or, if less than such Major Investor’s pro rata amount is offered by the Company, such lesser amount so offered) to such Major Investor pursuant to this Subsection 4.1. Following any such termination, such Investor shall no longer be deemed a “Major Investor” for any purpose of this Subsection 4.1
(f) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Subsection 4.1, the Company issued under may elect to give notice to the Employee Share Option PlanMajor Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage-ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (Gain Therapeutics, Inc.), Investors’ Rights Agreement (Gain Therapeutics, Inc.), Investors’ Rights Agreement (Gain Therapeutics, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, itself and (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”)Affiliates; provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of DirectorsBoard, (y) agrees to enter into this Agreement and the Amended and Restated Voting Agreement of even date herewith among the Company, the Investors and the other parties named therein (the “Voting Agreement”), as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as an Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Registrable Securities then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares number of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Registrable Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Registrable Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Registrable Securities then held, held by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety one hundred and twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the 90-one hundred and twenty (120) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsRestated Certificate), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Preferred Stock pursuant to the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (Kronos Bio, Inc.), Investors’ Rights Agreement (Kronos Bio, Inc.), Investors’ Rights Agreement (Kronos Bio, Inc.)
Right of First Offer. Subject to Section 7.1, and except as otherwise allowed under Section 4.1, no Shareholder or Subordinate Shareholder (the terms and conditions of this Section 8.1 and applicable securities Laws“Transferor”) may, if the Company proposes to offer at any time, Transfer any Equity Securities legally or sell any New Securitiesbeneficially held by it, the Company shall first offer such New Securities except pursuant to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.following provisions:
(a) The Company Prior to consummating any such Transfer of the Equity Securities, the Transferor shall give deliver a written notice (the “Offer Notice”) to each Investorother Shareholder (the “Offerees”), stating (i) setting forth its bona fide intention to offer such New SecuritiesTransfer Equity Securities to a third party, (ii) the number and type of such New Equity Securities to be offeredTransferred (the “Subject Shares”), the price at which such Transferor wishes to sell the Subject Shares (the “Offer Price”), and (iii) any other terms of the price and terms, if any, upon which it proposes to offer such New Securitiesoffer.
(b) By notification to the Company within thirty (30) days after the The Offer Notice is shall constitute, for a period of 15 days from the date on which it shall have been deemed given, an irrevocable and exclusive offer to sell to each Investor may elect to purchase Offeree (or otherwise acquireany direct or indirect wholly-owned Subsidiary designated by an Offeree), at the Offer Price, a portion of the Subject Shares not greater than the proportion that the number of Equity Securities owned by such Offeree bears to the total number of Equity Securities owned by all the Offerees.
(c) Each Offeree (or a designated direct or indirect wholly-owned Subsidiary thereof) may accept the offer set forth in an Offer Notice by giving notice to the Transferor, prior to the expiration of such offer, specifying the maximum number of the Subject Shares that the Offeree wishes to purchase. Any Offeree may exercise the right to purchase all or a portion of Equity Securities pursuant to this Section 4.2 by causing such Person(s) to which such Offeree would be permitted to Transfer Equity Securities pursuant to Section 4.1 to purchase such all or portion of Equity Securities directly from the Transferor, if so specified in the notice given to the Transferor pursuant to this Section 4.2(c) and/or Section 4.2(d).
(d) If one or more Offerees do not agree to purchase all of the Subject Shares to which such Offerees are entitled (such shares not purchased, the “Offeree Remaining Shares” and together with Offeree Remaining Shares of all other Offerees, the “Aggregate Remaining Shares”), the Transferor shall promptly so notify each Offeree that has agreed to purchase all of the Subject Shares so entitled (each a “Second Round Offeree”), such notice to constitute an offer to sell, irrevocable for fifteen (15) days, to each such Offeree, at the Offer Price, a portion of the Aggregate Remaining Shares not greater than the proportion that the number of Equity Securities owned by such Second Round Offeree bears to the total number of Equity Securities owned by all of the Second Round Offerees. Each Second Round Offeree shall notify the Transferor, prior to the expiration of such offer, specifying the number of Aggregate Remaining Shares that such Offeree agrees to purchase.
(e) If the Offerees in the aggregate agree to purchase any or all of the Subject Shares pursuant to this Section 4.2, they shall pay in cash or immediately available funds for and the Transferor shall deliver valid title to, free and clear of any Lien, such Subject Shares, subject to receipt of any necessary or advisable third party approvals or any Governmental Approvals, within fifteen (15) days following completion of the procedures set forth in subsection (b) and (d) hereof.
(f) If the offers made by the Transferor to the Offerees pursuant to subsections (b) and (d) hereof expire without an agreement by one or more Offerees to purchase all of the Subject Shares, the Transferor shall have sixty (60) days to enter into a definitive agreement with respect to such Transfer and ninety (90) days to effect the Transfer of the balance of the Subject Shares to any third party or parties, for cash, at a price not less than the Offer Price, and on upon terms not otherwise more favorable to the terms transferee or transferees than those specified in the Offer Notice, up subject to that portion of such New Securities which equals the proportion that the Ordinary Shares then held execution and delivery by such Investor (including third party of an assignment and assumption agreement, in form and substance satisfactory to the other Shareholders, pursuant to which such third party shall assume all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by obligations of a party pursuant to or under this Agreement. In the event such InvestorTransfer is not consummated within such ninety (90) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company Transferor shall promptly notify each Investor that elects not be permitted to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New sell its Equity Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within 4.2 without again complying with each of the later requirements of this Section 4.2; provided, that such ninety (90) days day period should be extended automatically as necessary (i) to apply for and obtain any Governmental Approvals that are required to consummate such Transfer, so long as the Transferor is making good faith efforts to obtain such Governmental Approvals as soon as practicable in accordance with applicable Law and (ii) in the event that Section 4.3, 4.4, 4.5 or 4.6 applies, to complete the procedure as provided therein. If there is such extension, the relevant period will end on the fifth Business Day following the receipt of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)such Governmental Approvals.
(cg) If all New Securities referred to in the Offer Notice are not elected to The provisions of this Section 4.2 shall terminate upon, and be purchased or acquired as provided in Section 8.1(b)of no force and effect from and after, the Company may, during the 90-day period following the expiration completion of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1IPO.
(dh) The Subject to Section 4.2(g), each Shareholder’s right of first offer set forth in this Section 8.1 4.2 shall not be applicable to terminate, (i) Exempted Securities (as defined with respect to Yahoo or SOFTBANK, in the Company’s Constitutive Documents), event such Shareholder ceases to own at least the Threshold Number of Equity Securities and (ii) Ordinary Shares issued with respect to the Management Members, in an initial public offering and (iii) equity securities the event that the aggregate number of Equity Securities owned by the Management Members is less than 50% of the Company issued under the Employee Management Current Share Option PlanNumber.
Appears in 3 contracts
Samples: Shareholder Agreement, Shareholder Agreement (Alibaba Group Holding LTD), Share Repurchase and Preference Share Sale Agreement (Yahoo Inc)
Right of First Offer. (a) Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Applicable Securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each of the InvestorsROFO Offerees. Each Investor The ROFO Offerees shall be entitled to apportion the right of first offer hereby granted to it them in such proportions as it deems they deem appropriate, among (i) itselfthemselves and their respective Affiliates and, (ii) its Affiliates and (iii) its in the case of ROFO Offerees that are Initial Investors, beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Initial Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Investors’ Rights Agreement as an “Investor” under such agreement and each of the Voting Agreement and the ROFR and Co-Sale Agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights under Sections 7.1, 7.2 Subsections 3.1 through 3.4 and 8.1 4.1 hereof), ) and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor ROFO Offeree holding the fewest number of Investor Preferred Shares and any other Derivative Securities; provided that the Lead Investors shall collectively be entitled to apportion their rights of first offer among themselves and up to 10 of their Affiliates or Investor Beneficial Owners without such Affiliates or Investor Beneficial Owners agreeing to purchase any minimum number of New Securities.
(ab) The Company shall give notice (the “Offer Notice”) to each Investorof the ROFO Offerees, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(bc) By notification to the Company within thirty twenty (3020) days after the Offer Notice is givengiven pursuant to Subsection 4.1(b), each Investor of the ROFO Offerees may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to (i) that portion of such New Securities (the “Pro Rata New Securities”) which equals the proportion that the Ordinary Shares then held by such Investor ROFO Offeree (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such InvestorROFO Offeree) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities) or (ii) only in the case of the Initial Investors and if and only if the offer price of the New Securities, measured in reference to Ordinary Shares, is equal to or lower than the price per Ordinary Share paid by any such ROFO Offeree (calculated based on the price per Preferred Share paid by such ROFO Offeree as adjusted using the then-applicable conversion ratio), 150% of the Pro Rata New Securities then outstanding)with the Pro Rata New Securities of each other ROFO Offeree being correspondingly reduced. At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor ROFO Offeree (excluding any Advisory Investors) that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising InvestorROFO Offeree”) of any other InvestorROFO Offeree’s (excluding any Advisory Investors) failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor ROFO Offeree (excluding any Advisory Investors) may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors other ROFO Offerees were entitled to subscribe but that were not subscribed for by the Investors such ROFO Offerees which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor ROFO Offeree (excluding any Advisory Investors) bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors ROFO Offerees (excluding any Advisory Investors) who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(c) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(d).
(cd) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(c), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(c), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors ROFO Offerees in accordance with this Section 8.1Subsection 4.1.
(de) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsRestated Articles), (ii) Ordinary Shares issued in an initial public offering the Qualified IPO, and (iii) equity securities solely in the case of the Advisory Investors, any Strategic Investment. Notwithstanding anything herein to the contrary, the Company issued shall cooperate reasonably to the extent permitted by applicable law to permit the ROFO Offerees to purchase their respective Pro Rata New Securities in any potential initial public offering of the Company’s securities, or, if required under Applicable Securities Laws, in a side-by-side private placement (subject to customary cutbacks and other limitations).
(f) Notwithstanding any provision hereof to the Employee Share Option Plancontrary, in lieu of complying with the provisions of this Subsection 4.1, the Company may elect to give notice to each of the ROFO Offerees within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the New Securities. Each of the ROFO Offerees shall have twenty (20) days from the date notice is given to elect to purchase up to the number of New Securities that would, if purchased by such ROFO Offeree, maintain such ROFO Offeree’s percentage-ownership position or 150% of such percentage, as determined and calculated pursuant to Subsection 4.1(c), before giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date notice is given to the ROFO Offerees.
Appears in 3 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (BeiGene, Ltd.), Investors’ Rights Agreement (BeiGene, Ltd.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The In the event any Shareholder intends to exercise any of the rights set forth in Section 5.1 or Section 5.3 to Transfer all or any part of its Company shall give notice Shares (the “Offered Interest”), such Shareholder shall first provide the other Shareholders with a notice of its intent to sell such Offered Interest (an “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) specifying the number and type of such New Securities to be offered, and (iii) the price and terms, if any, upon which Company Shares that it proposes to sell and the intended offer price. For twenty-eight (28) days following receipt of such New Securities.
Offer Notice, each of other Shareholders shall have a right to purchase such Offered Interest at the intended offer price indicated in the Offer Notice, subject to this Section 5.5. Such right shall be exercisable upon delivery of a written reply notice (bor notices) By notification by the Shareholders to the Company transferor within thirty such twenty-eight (3028) day period. If one or more Shareholders timely deliver such a written reply notice, then such Shareholders shall on a single date promptly (and in any case within sixty (60) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquireexpiration of such 28 day period), at the purchase price and on the payment terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available cause to it (each, a “Fully Exercising Investor”) be purchased an amount of any other Investor’s failure to do likewise. During the 10-day period commencing after the each type of Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is Shares equal to the proportion that amount of each type of Company Shares proposed to be sold multiplied in each case by the Ordinary such Shareholder’s Agreement Ownership Percentage (excluding for the purposes of this calculation in the denominator any Company Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred proposed to be offered). No Shareholder shall be required to sell any Company Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b5.5(a) shall occur unless all of the Offered Interest will be purchased by one or more Shareholders.
(b) If all of the Offered Interest proposed to be sold is not purchased by one or more Shareholders in the manner specified above, the transferor may, subject to the provisions of this Article V offer such Offered Interest within the later of ninety two hundred seventy (90270) days of the date that the Offer Notice is given and twenty-eight (28) days after the date of initial the Offer Notice; provided that any sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to such Offered Interest must be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons made at a purchase price not less than, and upon terms no more favorable that is equal to or greater than the offeree than, those offer price specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
Appears in 3 contracts
Samples: Voting Trust Agreement (Cablevision Holding S.A.), Shareholders Agreement (Cablevision Holding S.A.), Shareholders Agreement (Fintech Telecom, LLC)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall If a Shareholder (such Shareholder, an “Offering Shareholder”) desires to Transfer by sale more than 10% of the Common Shares owned by the Shareholder Group of such Shareholder (with such 10% being measured based on the Common Shares owned as of the date of this Agreement; the shares the subject of such desired sale, the “Offered Shares”) to one or more third parties (a “Third-Party Purchaser,” which may include buyers in open market transactions), the Offering Shareholder must first give written notice (the “Offer Offering Shareholder Notice”) to each Investorthe Shareholders of the other Shareholder Group in accordance with the provisions of this Section 3.03. For these purposes, stating it is understood that (ix) any sales in one or a series of transactions that are related in any material way (for avoidance of doubt, open market sales that do not occur at substantially the same time, even if through the same placement agent or underwriter, are not related) or (y) any sales to any particular Third-Party Purchaser and its bona fide intention affiliates that occur within 12 months of the time of contracting and closing of any such prior sale (excluding open market sales for which the buyer is unknown, even if the same placement agent or underwriter is used) shall be aggregated to offer such New Securities, (ii) determine whether 10% of the number Common Shares owned by the Shareholder Group have been transferred for purposes of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securitiesthis Section 3.03.
(b) By notification The Offering Shareholder shall deliver the Offering Shareholder Notice, in the event that the Offering Shareholder is a Washington Party, to the Company within thirty (30) days after Tiger Representative, and, in the Offer Notice event that the Offering Shareholder is givena Tiger Party, each Investor to the Washington Representative, stating its intent to make such Transfer and specifying the number of Offered Shares proposed to be Transferred by the Offering Shareholder, the consideration to be received for such Offered Shares by such Offering Shareholder, which consideration, if in open market sales, may elect to purchase or otherwise acquire, for example be prevailing open market prices at the price and on time of sale (the terms specified in the “Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectlyPrice”) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares material terms and conditions of the Company then outstanding proposed Transfer (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstandingthe “ROFO Offer”). At the expiration The Representative receiving such notice shall promptly provide a copy of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities Shareholders for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, such Representative acts as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)Representative.
(c) If all New Securities referred The Offering Shareholder Notice shall constitute a legally binding and irrevocable offer to sell the Offered Shares to the Shareholders of the other Shareholder Group at the Offer Price and on the same terms and conditions as set forth in the Offer Offering Shareholder Notice (the “Transfer Consideration”). Upon receipt of the Offering Shareholder Notice, the Washington Representative or the Tiger Representative, as the case may be, shall have five (5) Business Days (the “Acceptance Period”) to accept (“Acceptance”) the Offering Shareholder’s offer as to all, but not less than all, of the Offered Shares by delivering a written notice of such offer (an “Acceptance Notice”) to the Offering Shareholder. “Business Day” means a day other than a Sunday or Saturday or any other day on which banks are not elected required to be purchased closed or acquired are authorized to close in New York, New York, Hong Kong, PRC, or Vancouver, British Columbia. Any Acceptance must be bona fide and shall constitute a legally binding and irrevocable acceptance of the ROFO Offer. The Washington Parties or the Tiger Parties, as provided applicable, will determine and allocate among themselves which Shareholder or Shareholders in Section 8.1(bsuch Shareholder Group will purchase the Offered Shares (the “ROFO Purchaser”), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, determination and upon terms no more favorable to the offeree than, those specified allocation must be included in the Offer Acceptance Notice. If the Company Washington Representative or the Tiger Representative, as the case may be, does not enter into send an agreement for Acceptance Notice within the sale of Acceptance Period, then the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall ROFO Offer will be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1rejected.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
Appears in 3 contracts
Samples: Shareholders Agreement (Washington Dennis R), Shareholders Agreement (Tiger Container Shipping CO LTD), Shareholders Agreement (Wang Gerry Yougui)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, itself and (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”)Affiliates; provided that that, each such Affiliate or Investor Beneficial Owner Affiliate: (x) is not a CompetitorCompetitor or a FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that that, any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.1, 7.2 Subsections 3.1 and 8.1 3.2 hereof), and (z) agrees to purchase purchase, together with the applicable Investor and any of its other Affiliates to whom this right is apportioned, an aggregate of at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then Preferred Stock issued and held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock issued and any other Derivative Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares Preferred Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, held by such Fully Exercising Investor bears to the Ordinary Shares Preferred Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, held by all Fully Exercising Investors who wish to purchase such unsubscribed shares. .The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety one hundred and twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option PlanIPO.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (Galera Therapeutics, Inc.), Investors’ Rights Agreement (Galera Therapeutics, Inc.), Investors’ Rights Agreement (Galera Therapeutics, Inc.)
Right of First Offer. Subject to the terms and conditions of specified in this Section 8.1 4.1, and applicable securities Lawslaws, if in the event the Company proposes to offer or sell any New Additional Equity Securities, the Company shall first offer make an offering of such New Additional Equity Securities (the “Offered Securities”) to the InvestorsFounders and the Investors (the “Offerees”) in accordance with the following provisions of this Section 4.1. Each Investor Any Offeree shall be entitled to apportion the right of first offer hereby granted to it among their partners, members and Affiliates in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice deliver a notice, in accordance with the provisions of Section 8.4 hereof, (the “Offer Notice”) to each Investor, the Offerees stating (i) its bona fide intention to offer such New Offered Securities, (ii) the number of such New Offered Securities to be offeredoffered to the Offerees, and (iii) the price and terms, if any, upon which it proposes to offer such New Offered Securities.
(b) By written notification to received by the Company Company, within thirty twenty (3020) calendar days after mailing of the Offer Notice is givenNotice, each Investor Offeree may elect to purchase or otherwise acquireobtain its pro-rata share of the Offered Securities, at the price and on the terms specified in the Offer Notice. For purpose of this Section 4.1(b), up to that portion the “pro-rata share” shall be the ratio of such New Securities which equals (a) the proportion that the number of Ordinary Shares then (calculated on a fully-diluted and as-converted basis) held by such Investor Offeree, bearing to (including all Ordinary Shares then issuable (directly or indirectlyb) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total number of Ordinary Shares of the Company (calculated on a fully-diluted and as-converted basis) then outstanding (assuming full conversion and/or exercise, as applicable, immediately prior to the issuance of all Series A Preferred Shares and any other Derivative Securities then outstanding)Additional Equity Securities. At the expiration of such 30-day period, the The Company shall promptly notify promptly, in writing, inform each Investor Offeree that elects to purchase or acquire all the shares available to it (each, a “Fully Fully-Exercising InvestorHolder”) of any other InvestorOfferee’s failure to do likewise. During the ten (10) day-day period commencing immediately after the Company has given receipt of such noticeinformation, each Fully Fully-Exercising Investor may, by giving notice Holder shall be entitled to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to obtain that portion of the New Offered Securities for which any of the Investors Offerees were entitled to subscribe but that which were not subscribed for by the Investors Offerees which is equal to the proportion that calculated by dividing the number of Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, held by such Fully Fully-Exercising Investor bears to Holder by the total number of Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, held by all Fully Fully-Exercising Investors Holders who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)Offered Securities.
(c) If all New Offered Securities referred to in the Offer Notice are not elected to be purchased or acquired obtained as provided in Section 8.1(b)4.1(b) hereof, the Company may, during the ninety (90-) day period following the expiration of the periods period provided in Section 8.1(b)4.1(b) hereof, offer and sell the remaining unsubscribed portion of such New Offered Securities (collectively, the “Refused Securities”) to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree Offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Offered Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Offered Securities shall not be offered unless first reoffered to the Investors Offeree in accordance with this Section 8.14.1.
(d) The right of first offer set forth in this Section 8.1 shall 4.1 may not be applicable assigned or transferred except that such right is assignable by an Investor to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities any Affiliate of the Company issued under the Employee Share Option Plansuch Investor.
Appears in 2 contracts
Samples: Series C Preferred Share Purchase Agreement (Momo Inc.), Series C Preferred Share Purchase Agreement (Momo Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securitiesagreement.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and the QIPO; (iii) equity the issuance of shares of Series F Preferred Stock pursuant to the Purchase Agreement; or (iv) shares or securities which the Major Investors holding at least a majority of the Company issued under the Employee Share Option PlanRegistrable Securities held by all Major Investors agree, retroactively or prospectively, shall not be deemed to be New Securities.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Winc, Inc.), Investors’ Rights Agreement (Winc, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitorcompetitor, as reasonably determined by the Board, or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of DirectorsBoard, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor competitor, as reasonably determined by the Board of Directors Board, or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares shares of Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the 90-one hundred twenty (120) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Subsection 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and (iii) equity securities terms of the Company issued under New Securities. Each Major Investor shall have twenty (20) days from the Employee Share Option Plandate notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage-ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Elevation Oncology, Inc.), Investors’ Rights Agreement (Elevation Oncology, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1, and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, appropriate among (i) itself, (ii) itself and its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”)Affiliates; provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor of the Company (as reasonably determined by the Company’s Board of Directors), unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, and (y) agrees to enter into this Agreement and the Voting Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor (as reasonably determined by the Company’s Board of Directors Directors) shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2, 3.3 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety one hundred twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty forty-five (3045) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares equity securities issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Series B Preferred Stock to Additional Purchasers pursuant to Subsection 1.3 of the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Cue Health Inc.), Investors’ Rights Agreement (Cue Health Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, Directors and (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety one hundred and twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Series B Preferred Stock pursuant to Subsection 1.3 of the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Immuneering Corp), Investors’ Rights Agreement (Immuneering Corp)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it such Major Investor in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitorcompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, Directors and (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors competitor or FOIA Party shall not be entitled to any rights as an Investor under Sections 7.1, 7.2 and 8.1 Subsections 3.1 or 3.2 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the an “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it the Company proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-day twenty (20)-day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the 10-day ten (10)-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the 90-day ninety (90)-day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsRestated Certificate), (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO and (iii) equity securities the issuance of shares of Series B Preferred pursuant to the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Poseida Therapeutics, Inc.), Investors’ Rights Agreement
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Major Investor and The Board of Trustees of the InvestorsUniversity of Illinois (the “University Investor”). Each A Major Investor and the University Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of such Major Investor. The University Investor shall be permitted to apportion its right of first offer granted hereby to other individuals or entities that are not competitors of the Company; provided, that the University Investor (“Investor Beneficial Owners”); provided that each provides the Company with prior written notice of such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securitiesassignment.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor and the University Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor and the University Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that quotient determined by dividing (A) (i) the Ordinary Shares shares of Common Stock then held by such Major Investor (including all Ordinary Shares that have been issued or are then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such InvestorMajor Investor (excluding any University Shares) bears to and (ii) the University Shares, by (B) the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.the
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Revolution Medicines, Inc.), Investors’ Rights Agreement (Revolution Medicines, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and the Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.13.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty (30) 20 days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A shares of Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-20 day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the 10-10 day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) 90 days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the 90-90 day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) 30 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to to: (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of the shares of Series B Preferred Stock pursuant to the Purchase Agreement.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Section 4.1, the Company issued under may elect to give notice to the Employee Share Option PlanMajor Investors within 30 days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the New Securities. Each Major Investor shall have 20 days from the date notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage-ownership position, calculated as set forth in Section 4.1(b) before giving effect to the issuance of such New Securities.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Artiva Biotherapeutics, Inc.), Investors’ Rights Agreement (Artiva Biotherapeutics, Inc.)
Right of First Offer. Subject (i) If at any time following the date that is nine (9) months after the Filings Completion Date and prior to the distribution of an Asset Pool to the Receiving Partners of such Asset Pool or their Affiliates (the “Dissolution Offer Period”), such Receiving Partners desire the Partnership to Transfer all or any portion of the Assets (the “Transfer Assets”) in such Asset Pool or any direct or indirect equity interest therein to any Person other than such Receiving Partners or their Affiliates, such Receiving Partners (the “Dissolution Offering Partners”) shall (or shall cause the Partnership to) first offer to sell such Transfer Assets on the terms and subject to the conditions of set forth in this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof8.4(x), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give by giving written notice thereof (the “Dissolution Offer Notice”) to each Investorthe other Partners or, stating if applicable, to the Persons who were, immediately prior to the first Distribution Date, the other Partners (the “Dissolution Offeree Partners”). A Dissolution Offer Notice shall specify: (i) its bona fide intention the price for the Transfer Assets subject to offer such New Securities, the Dissolution Offer Notice; (ii) the number types of currency (and terms of, if applicable) for payment of such New Securities price, which currency may consist only of cash; the assumption of liabilities; debt; common stock; preferred stock; convertible preferred stock; or such other corporate security that (1) is generally accepted by the financial community for use in acquisition transactions and (2) may be replicated by the Dissolution Offeree Partners or its Affiliates (it being expressly understood that securities are to be offered, described in terms replicable by any third party regardless of the identity of the particular issuer); and (iii) all other material terms of the price proposed offer to sell, including, without limitation, whether such transaction is to be tax-advantaged or tax-deferred, and terms, if any, upon which it proposes all conditions to offer such New Securitiesclosing.
(bii) By notification If the Dissolution Offeree Partners do not accept within forty-five (45) days the offer set forth in the Dissolution Offer Notice (a “Waiver”), then at the time of the lapse of such period for acceptance and subject to compliance with the time frames set forth in this Section 8.4(x) for execution of definitive agreements, the Dissolution Offering Partners may cause the Partnership to sell Transfer Assets subject to the Company within thirty (30) days after the Dissolution Offer Notice to a third party that is given, not an Affiliate of the Dissolution Offering Partners on terms and conditions determined by the Dissolution Offering Partners; provided that such sale or transfer is:
(1) for the types of currency specified in the Dissolution Offer Notice and in at least ninety-five percent (95%) of the minimum amount of each Investor may elect such type of currency set forth in the Dissolution Offer Notice;
(2) at a price equal to purchase or otherwise acquire, at greater than ninety-five percent (95%) of the price and specified in the Dissolution Offer Notice; and
(3) on substantially all of the other material terms specified in the Dissolution Offer Notice, up including the conditions to that portion of closing.
(iii) If the Partnership does not sign definitive agreements for such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b8.4(x) shall occur within the later of ninety (90) 180 days of the date Dissolution Partner Offerees’s Waiver, then the provisions of this Section 8.4(x) shall again be applicable; provided that at any point during such 180-day-period, the Dissolution Offering Partner may submit a new Dissolution Offer Notice and restart the process under this Section 8.4(x); provided further, that if such new Dissolution Offer Notice is given not materially different than the prior notice, except as to price, and such price is lower than the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to price in the prior Dissolution Offer Notice, then the period of time for the Dissolution Offeree Partners to accept the offer set forth in the Dissolution Offer Notice are not elected to be purchased or acquired as provided in under Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (308.4(x)(ii) days of the execution thereof, the right provided hereunder with respect thereto shall be deemed to be revived fifteen (15) days.
(iv) If the Dissolution Offeree Partners accept, within the time period set forth in Section 8.4(x)(ii) above, the offer set forth in the Dissolution Offer Notice, upon such acceptance, the terms of such accepted offer shall become binding upon the parties. The Dissolution Offering Partners, the Partnership and the Dissolution Offeree Partners shall negotiate in good faith to enter into more formal agreements within forty-five (45) days of such New Securities acceptance, but it is understood and agreed that the terms of the accepted offer shall not be offered unless first reoffered binding upon the parties and the transaction shall be consummated on the terms set forth in such accepted offer, including being subject to satisfaction of all conditions therein. At any time prior to the Investors acceptance by the Dissolution Offeree Partners of an offer set forth in a Dissolution Offer Notice, the Dissolution Offering Partners may cause the Partnership to distribute their Asset Pool to them or their Affiliates in accordance with this and subject to Section 8.18.4(h), and in such event, such offer shall be void and of no further force or effect.
(dv) The right of first offer in Dissolution Offeree Partners may assign their rights under this Section 8.1 8.4(x) to their Ultimate Parent or any of its Affiliates by delivering written notice of such assignment to the Partnership and the Offeror Partners; provided, that no such assignment shall not relieve the Dissolution Offeree Partners of their obligations under this Section 8.4(x).
(vi) The Partners and the General Manager shall cooperate in good faith with any attempt to sell Transfer Assets, including by providing reasonable access to books and records subject to the limitations described in Section 5.2(f). The Dissolution Offering Partners shall indemnify and hold harmless the Partnership and its Subsidiaries, the General Manager and the other Partners and their respective Affiliates (the “Non-Selling Indemnified Parties”) for any Damages related to or arising out of sale or attempted sale of Transfer Assets, including all reasonable costs and expenses of negotiations with third parties, and shall cause all representations, warranties and indemnities to be applicable non-recourse to all Non-Selling Indemnified Parties. Subject to the foregoing, the Partnership and its Subsidiaries shall execute such documents in connection with such sale or transfer as the Dissolution Offering Partners reasonably request.
(ivii) Exempted Securities (as defined in For the Company’s Constitutive Documents)avoidance of doubt, (ii) Ordinary Shares issued in an initial public offering any and (iii) equity securities all proceeds of the Company issued under Sale of Transfer Assets shall be allocated to the Employee Share Option PlanAsset Pool of the Dissolution Offering Partners and distributed to them as promptly as possible.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Time Warner Cable Inc.), Limited Partnership Agreement (Time Warner Cable Inc.)
Right of First Offer. Subject to (a) Any Right of First Offer Transfer by any Shareholder or any Permitted Transferee of the terms and conditions of this Section 8.1 and applicable securities Laws, if Shareholders (the Company proposes to offer or sell any New Securitiesproposed transferor, the Company shall first offer such New Securities "Transferring Party") will be subject to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted provisions of this Section 3.02.
(b) Prior to it in such proportions as it deems appropriateeffecting any Right of First Offer Transfer, among the Transferring Party shall deliver a written notice (the "Offer Notice") to the Company, which Offer Notice shall specify (i) itself, (ii) its Affiliates the number or amount and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, description of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented Voting Shares intended to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New SecuritiesTransferred, (ii) the number of applicable exception under Section 3.01 pursuant to which such New Securities to be offered, Transfer is being made and (iii) if applicable, the price and terms, if any, upon which it proposes to Specified Price (as defined below). The Offer Notice shall constitute an irrevocable offer such New Securities.
(b) By notification to the Company within thirty or its designee, for the period of time described below, to purchase all (30but not less than all) days after of such Voting Shares at (i) the Offer Price (as defined in Section 3.02(c) below), in the case of a Permitted Tender Offer, (ii) the price set by the Transferring Party in the Offer Notice is given(the "Specified Price"), each Investor may elect to purchase in the case of a Private Placement, or otherwise acquire, at (iii) the price and on Current Market Value as of the terms specified in date of the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including in all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)cases.
(c) If all New Securities referred For purposes hereof, the "Offer Price" shall mean with respect to any Permitted Tender Offer, the final tender offer or exchange offer price offered per Voting Share in such offer, or any other offer announced prior to the scheduled expiration date of the initial offer, if higher, taking into account any provisions thereof with respect to proration and any proposed second step or "back-end" transaction. To the extent the Offer Notice are not elected Price consists of consideration other than cash or a publicly traded security for which a closing market price is published for each Business Day (in which case such non-cash portion of the consideration shall be equal to be purchased or acquired the Current Market Value determined as provided in Section 8.1(bof the Business Day prior to the announcement of the Permitted Tender Offer), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder consideration shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right valued by a determination of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.a 22 18
Appears in 2 contracts
Samples: Shareholder Governance Agreement (Vivendi), Shareholder Governance Agreement (Seagram Co LTD)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held held, by such Investor) Investor bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO, and (iii) equity securities the issuance of shares of Series D Preferred Stock to Additional Purchasers pursuant to Subsection 1.3 of the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Arcadia Biosciences, Inc.), Investors’ Rights Agreement (Arcadia Biosciences, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, and (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(b).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation (as may be amended from time to time), ); (ii) Ordinary Shares shares of Series B Preferred Stock issued in an initial public offering pursuant to the Purchase Agreement; and (iii) equity securities shares of Common Stock issued in the Company issued under the Employee Share Option PlanIPO.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Sienna Biopharmaceuticals, Inc.), Investors’ Rights Agreement (Sienna Biopharmaceuticals, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Notes, the Preferred Shares Stock and any other Derivative Securities then held held, by such Investor) Investor bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Notes, Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Notes, Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Notes, Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation, as amended from time to time), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity shares of securities issued in connection with acquisitions by the Company.
(e) In lieu of complying with the provisions of Subsections 4.1(a) through (d), unless such non-compliance with Subsections 4.1(a) through (d) adversely affects the Investors in any way in which case the Company will be required to comply with the provisions of Subsections 4.1(a) through (d), the Company may elect to give notice to the Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the Company issued under New Securities. Each Investor shall have twenty (20) days from the Employee Share Option Plandate notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Investor, maintain such Investor’s percentage-ownership position, calculated as set forth in Section 4.1(b) before giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date notice is given to the Investors.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Opgen Inc), Investors’ Rights Agreement (Opgen Inc)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, itself and (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”)Affiliates; provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitorcompetitor of the Company, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, and (y) agrees to enter into this Agreement and each of the Third Amended and Restated Voting Agreement and Third Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors competitor shall not be entitled to any rights as an Investor or Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), provided further that a Major Investor shall not be considered a “competitor” solely because such Major Investor has a 10% or less ownership interest in a competitor, and provided further that, for purposes of all applicable provisions in this Agreement, the Funds (zdefined below) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and shall not be considered a “competitor” for any other Derivative Securitiesreason).
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor, but excluding all shares of Common Stock issued pursuant to the “Special Mandatory Conversion” provisions of the Restated Certificate) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option PlanIPO.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Oncorus, Inc.), Investors’ Rights Agreement (Oncorus, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1, the preemptive rights granted to The Broad Institute, Inc. and its designees pursuant to the Broad License, and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Major Investor (provided that the InvestorsBoard of Directors has not reasonably determined that such Major Investor is a Competitor). Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, Directors and (y) agrees to enter into this Agreement and each of the Voting Agreement , and Right of First Refusal and Co-Sale Agreement of even date hereof among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by or FOIA Party to whom the Board foregoing right of Directors first offer is apportioned shall not be entitled to any rights as a Major Investor or Investor, as applicable, under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number but the Investor that so apportioned the right of New Securities as are allocable first offer shall retain all rights hereunder to which it would otherwise be entitled in accordance with the Investor holding the fewest number of Investor Shares and any other Derivative Securitiesterms hereof.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingoutstanding (such portion the “Pro Rata Share”). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty ninety (3090) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities shares of Series B Preferred Stock issued pursuant to the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Prime Medicine, Inc.), Investors’ Rights Agreement (Prime Medicine, Inc.)
Right of First Offer. (a) Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Major Investor, provided that the InvestorsBoard of Directors has not reasonably determined that such Major Investor is a Competitor of the Company. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase Competitor of New Securities is otherwise consented to the Company as reasonably determined by the Board of Directors, and (y) agrees to enter into this Agreement and the Stockholders Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor shall not be entitled to any rights as a Major Investor under Subsections 3.1, 3.2 and 4.1 hereof).
(b) Notwithstanding anything to the contrary herein, for so long as TRV is deemed a Major Investor, TRV shall have the right to apportion its right of first offer of New Securities pursuant to Section 4.1(a) among itself, its Affiliates, and such unaffiliated third parties as TRV reasonably deems appropriate (each such Affiliate or unaffiliated third party, a “Permitted TRV Transferee”), provided that each such Permitted TRV Transferee (x) is not a Competitor of the Company as reasonably determined by the Board of Directors Directors, and (y) agrees to enter into or join this Agreement and any other stockholder agreement with the Company that TRV is party to or would become a party to if it exercised its right of first offer, as an “Investor” under each such agreement. TRV shall not be entitled provide the Company with advanced written notice of any such apportionment of rights to any a Permitted TRV Transferee prior to the deadline set forth in Section 4.1(e) by which TRV is required to notify the Company of TRV’s or its Permitted TRV Transferees’ as applicable, intention to exercise its right of first offer with respect to a given issuance of New Securities, and TRV and the Permitted TRV Transferee shall provide the Company with such other information as the Company reasonably requests in connection with such apportionment of rights under Sections 7.1to such Permitted TRV Transferee.
(c) Notwithstanding anything to the contrary herein, 7.2 and 8.1 hereoffor so long as JJDC is deemed a Major Investor, JJDC shall have the right to apportion its right of first offer of New Securities pursuant to Section 4.1(a), and in the same proportion as TRV elects to apportion under Section 4.1(b) above, among itself, its Affiliates, and such unaffiliated third parties as JJDC reasonably deems appropriate (zeach such Affiliate or unaffiliated third party, a “Permitted JJDC Transferee”), provided that each such Permitted JJDC Transferee (x) is not a Competitor of the Company as reasonably determined by the Board of Directors, and (y) agrees to purchase at least enter into or join this Agreement and any other stockholder agreement with the Company that JJDC is party to or would become a party to if it exercised its right of first offer, as an “Investor” under each such number agreement. JJDC shall provide the Company with advanced written notice of any such apportionment of rights to a Permitted JJDC Transferee prior to the deadline set forth in Section 4.1(e) by which JJDC is required to notify the Company of JJDC’s or its Permitted JJDC Transferees’ as applicable, intention to exercise its right of first offer with respect to a given issuance of New Securities, and JJDC and the Permitted JJDC Transferee shall provide the Company with such other information as the Company reasonably requests in connection with such apportionment of rights to such Permitted JJDC Transferee.
(d) Notwithstanding anything to the contrary herein, for so long as ARCH is deemed a Major Investor, ARCH shall have the right to apportion its right of first offer of New Securities pursuant to Section 4.1(a), and in the same proportion as are allocable hereunder TRV elects to apportion under Section 4.1(b) above, among itself, its Affiliates, and such unaffiliated third parties as ARCH reasonably deems appropriate (each such Affiliate or unaffiliated third party, a “Permitted ARCH Transferee”), provided that each such Permitted ARCH Transferee (x) is not a Competitor of the Investor holding Company as reasonably determined by the fewest number Board of Investor Shares Directors, and (y) agrees to enter into or join this Agreement and any other Derivative stockholder agreement with the Company that ARCH is party to or would become a party to if it exercised its right of first offer, as an “Investor” under each such agreement. ARCH shall provide the Company with advanced written notice of any such apportionment of rights to a Permitted ARCH Transferee prior to the deadline set forth in Section 4.1(e) by which ARCH is required to notify the Company of ARCH’s or its Permitted ARCH Transferees’ as applicable, intention to exercise its right of first offer with respect to a given issuance of New Securities, and ARCH and the Permitted ARCH Transferee shall provide the Company with such other information as the Company reasonably requests in connection with such apportionment of rights to such Permitted ARCH Transferee.
(ae) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(bf) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares number of shares of Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the such Major Investors were entitled to subscribe subscribe, but that were not subscribed for by the Investors Major Investors, which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) or (c) shall occur within the later of ninety one hundred twenty (90120) days of after the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(d).
(cg) If fewer than all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(e), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(e), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.14.1.
(dh) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO and (iii) equity securities for the avoidance of doubt, the issuance of shares of Series B Preferred Stock to the Purchasers (as defined in the Purchase Agreement) pursuant to Section 1.2(b) of the Purchase Agreement.
(i) The rights of the Major Investors to purchase New Securities under this Section 4.1 may be modified or waived in accordance with Section 6.6; provided, however, that in the event such rights to purchase New Securities under this Section 4.1 are waived and any Major Investor(s) purchase New Securities, the Company issued under shall give notice to the Employee Share Option Planother Major Investors within thirty (30) days after the initial issuance of New Securities. Such notice shall describe the type, price, and terms of the New Securities. Each such other Major Investor shall have twenty (20) days from the date such notice is given to elect to purchase on similar terms and conditions in a subsequent closing up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage-ownership position, calculated as set forth in Section 4.1(e) before giving effect to the issuance of such New Securities.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Rapport Therapeutics, Inc.), Investors’ Rights Agreement (Rapport Therapeutics, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate. For the purposes of this Section 4 only, among in the event that the Company proposes to offer or sell New Securities for a price per unit less than the Series A Preferred Price (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereofRestated LLC Agreement), and (z) agrees each Founder shall be offered the same rights of first offer as afforded to purchase at least such number of New Securities as are allocable hereunder to the each Investor holding the fewest number of Investor Shares and any other Derivative Securitiesin this Section 4.
(a) The Company shall give notice (the “Offer Notice”) to each InvestorInvestor and, if applicable, each Founder stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, (i) each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Units issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Units and any other Derivative Securities then held by such Holder bears to the total Common Units of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Units and other Derivative Securities) and (ii) if applicable, each Founder may elect may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Units issued and held by Gigamon Systems and allocable to such Founder (with allocation based on the such Founder’s equity interest in Gigamon Systems relative to the equity interests in Gigamon Systems held by other Founders) or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Units and any other Derivative Securities then held by such Founder bears to the total Common Units of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Units and other Derivative Securities). At the expiration of such twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the securities available to it and, if applicable, each Founder who has elected to purchase or acquire all the securities available to him (each, a “Fully Exercising Holder”) of any other Investor’s or, if applicable, Founder’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Holder may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of securities specified above, up to that portion of the New Securities for which Investors and, if applicable, Founders were entitled to subscribe but that were not subscribed for which is equal to the proportion that the Common Units issued and held (or held indirectly through Gigamon Systems, as described in clause (ii) of the first sentence of this paragraph), or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Units and any other Derivative Securities then held, by such Fully Exercising Holder bears to the Common Units issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Units and any other Derivative Securities then held, by all Fully Exercising Investors Holders who wish to purchase such unsubscribed sharessecurities. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety one hundred and twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors and, if applicable, the Founders in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsRestated LLC Agreement), ; (ii) Ordinary Shares Common Units issued in an initial public offering the IPO; and (iii) equity those securities described in Section 2.1(c)(ii) of the Company issued under the Employee Share Option PlanRestated LLC Agreement.
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Gigamon LLC)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, itself and (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”)Affiliates; provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Amended and Restated Voting Agreement and Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.1Section 3.1, 7.2 Section 3.2 and 8.1 Section 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Series A-1 Preferred Stock to Additional Purchasers pursuant to Section 1.3 of the Purchase Agreement.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Section 4.1, the Company issued under may elect to give notice to the Employee Share Option PlanMajor Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage-ownership position, calculated as set forth in Section 4.1(b) before giving effect to the issuance of such New Securities.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Codex DNA, Inc.), Investors’ Rights Agreement (Codex DNA, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Investor and Napo (each an “Offeree” and together, the Investors“Offerees”). Each Investor An Offeree shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor such Offeree (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitorcompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as an Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares Series A Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each InvestorOfferee, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor Offeree may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor Offeree (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such InvestorOfferee) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor Offeree that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other InvestorOfferee’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors Offerees were entitled to subscribe but that were not subscribed for by the Investors Offerees which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety one hundred and twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors Offerees in accordance with this Section 8.1Subsection 4.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsRestated Certificate), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Series A Preferred Stock to Additional Purchasers pursuant to Subsection 1.3 of the Company issued under Purchase Agreement.
(e) The right of first offer set forth in this Subsection 4.1 shall terminate with respect to any Offeree who fails to purchase, in any transaction subject to this Subsection 4.1, all of such Offeree’s pro rata amount of the Employee Share Option PlanNew Securities allocated (or, if less than such Offeree’s pro rata amount is offered by the Company, such lesser amount so offered) to such Offeree pursuant to this Subsection 4.1.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Jaguar Animal Health, Inc.), Investors’ Rights Agreement (Jaguar Animal Health, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, itself (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, and (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by or FOIA Party to whom the Board foregoing right of Directors first offer is apportioned shall not be entitled to any rights as a Major Investor or Investor, as applicable, under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof but the Investor that so apportioned the right of first offer shall retain all rights hereunder to which it would otherwise be entitled in accordance with the terms hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Preferred Stock on an as converted to Common Stock basis then held by such Major Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, Preferred Stock on an as applicable, of converted to Common Stock basis held by all Series A Preferred Shares and any other Derivative Securities then outstanding)Major Investors. At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Preferred Stock on an as-converted to Common Stock basis issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Preferred Stock on an as-converted to Common Stock basis issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Series B Preferred Stock pursuant to the Purchase Agreement.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Subsection 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the Company issued under New Securities. Each Major Investor shall have twenty (20) days from the Employee Share Option Plandate notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage-ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date notice is given to the Major Investors.
Appears in 2 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (AVROBIO, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 2.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor (which for purposes hereof, shall include any transferee thereof). Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, itself and (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securitiespermitted transferees.
(a) The Company shall give written notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty (30) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities Warrants then held by such Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstandingWarrants). At the expiration of such thirty (30-) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving written notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Warrants then held, by such Fully Exercising Investor bears to the Common Stock issued and any other Derivative Securities held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Warrants then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b2.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c2.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b2.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b2.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty sixty (3060) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.12.1.
(d) The right of first offer in this Section 8.1 2.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), shares of Common Stock reserved under existing employee incentive share pools and (ii) Ordinary Shares New Securities issued in an initial public offering and (iii) equity securities of pursuant to acquisitions by the Company issued under the Employee Share Option PlanCompany.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Trunity Holdings, Inc.), Investors’ Rights Agreement (Pan-African Investment Company, LLC)
Right of First Offer. Subject to the terms and conditions of specified in this Section 8.1 3(a) and applicable securities Lawslaws, if the Company proposes to offer or sell any New SecuritiesSecurities within twelve (12) months after the Closing, the Company shall first offer make an offering of such New Securities to Series A Investor in accordance with the Investorsfollowing provisions of this Section 3 (the “RIGHT OF FIRST OFFER”). Each A Series A Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its partners, members, and Affiliates in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates appropriate subject to any applicable securities laws limitations and (iii) its beneficial interest holders, subject to such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of Persons who acquire New Securities is otherwise consented becoming a party to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative SecuritiesAgreement.
(a) i. The Company shall give deliver a notice in accordance with the provisions of Section 6(e) hereof (the “Offer NoticeOFFER NOTICE”) to each Investor, of the Series B Investor stating (i) its bona fide intention to offer such New Securities, ; (ii) the number of such New Securities to be offered, ; and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
ii. By written notification received by the Company, within ten (b10) By notification to the Company within thirty (30) calendar days after mailing of the Offer Notice is givenNotice, each of the Series B Investor may elect to purchase or otherwise acquireobtain, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which that equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares SERIES B PREFERRED STOCK (and any other Derivative Securities securities convertible into, or otherwise exercisable or exchangeable for, shares of Common Stock) then held held, by such Investor) Series A Investor bears to the total Ordinary Shares number of shares of Common Stock of the Company issued and held, or issuable upon conversion of the SERIES B PREFERRED STOCK then outstanding (assuming full conversion and/or exerciseheld, as applicable, by all of all the Series B Investor. The Company promptly shall inform in writing Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising InvestorFULLY EXERCISING INVESTOR”) of any other Series A Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given receipt of such noticeinformation, each Fully Exercising Investor may, by giving notice shall be entitled to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to obtain that portion of the New Securities for which the Investors Series B Investor were entitled to subscribe but for which the Series B Investor did not subscribe that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities SERIES B PREFERRED STOCK then held, by such Fully Exercising Investor bears to the Ordinary Shares total number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities SERIES B PREFERRED STOCK then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) iii. If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired obtained as provided in Section 8.1(b)3(a)(ii) hereof, the Company may, during the ninety (90-) day period following the expiration of the periods period provided in Section 8.1(b)3(a)(ii) hereof, offer and sell the remaining unsubscribed portion of such New Securities (collectively, the “REFUSED SECURITIES”) to any Person or Persons Person(s) at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors Series B Investor in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents3(a), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
Appears in 2 contracts
Samples: Investor Rights Agreement (Brookside Technology Holdings, Corp.), Investor Rights Agreement (Brookside Technology Holdings, Corp.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and the Voting Agreement as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.13.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding, but excluding, for avoidance of doubt, options reserved but not outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities grants by the Company to employees and directors who purchase, receive options to purchase, or receive awards of shares of the Company issued under Company’s capital stock, if approved by the Employee Share Option PlanBoard of Directors, including the Requisite Preferred Director Vote.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Lexeo Therapeutics, Inc.), Investors’ Rights Agreement (Lexeo Therapeutics, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each any such Affiliate or Investor Beneficial Owner (xy) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, and (yz) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights as an Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issued or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company held by all Major Investors together then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A the Preferred Shares Stock and any other Derivative Securities then outstandingheld by all Major Investors together). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the 90-ninety day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option PlanIPO.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (KnowBe4, Inc.), Investors’ Rights Agreement (KnowBe4, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) itself and its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative SecuritiesAffiliates.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of the failure of any other Investor’s failure Investor to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), Restated Certificate) and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option PlanIPO.
Appears in 2 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (Prevail Therapeutics Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Major Investors. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it it. in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “"beneficial ownership”, ," as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“"Investor Beneficial Owners”"); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Second Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “"Investor” " under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securitiesagreement.
(a) The Company shall give notice (the “"Offer Notice”") to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding held by all the Major Investors (assuming full including all shares of Common Stock issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of all Series A the Preferred Shares Stock and any other Derivative Securities then outstandingheld by the Major Investors). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “"Fully Exercising Investor”") of any other Major Investor’s 's failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents's Certificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Series B Preferred Stock to Hercules or Additional Purchasers pursuant to Section 1.2 of the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 2 contracts
Samples: Investors' Rights Agreement (Cerecor Inc.), Investors' Rights Agreement (Cerecor Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Investor that is an “accredited investor” (as defined Rule 501(a) under the InvestorsSecurities Act). Each An Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate. For the avoidance of doubt, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the an Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s an “accredited investor” shall not have any right to be offered or to purchase of New Securities is otherwise consented from the Company pursuant to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative SecuritiesSection 4.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty (30) 20 days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held held, by such Investor) Investor bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 3020-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) 90 days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) 30 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and the IPO or a SPAC Transaction; or (iii) equity securities the issuance of shares of Series F Preferred Stock to Additional Purchasers (as defined in the Company issued under Purchase Agreement) pursuant to the Employee Share Option PlanPurchase Agreement.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Fractyl Health, Inc.), Investors’ Rights Agreement (Fractyl Health, Inc.)
Right of First Offer. Subject (a) If either GIP or the WS Group decides at any time after the expiration of the Lock-up Period, to sell all (but not part) of the Shares, it shall first offer them to be sold to the other Party (the “First Offer Right”). For the avoidance of doubt, (i) the Parties agree that any allowed Transfer of Shares under this Agreement (other than those to Permitted Transferees) shall require the transfer of 100% of the Shares owned by such Party and (ii) that the Supermajority Matters do not restrict the right of the Parties to undertake an allowed Transfer of Shares; and (iii) that in the case a Party intends a Transfer of Shares by means of the transfer of the Shares of CIESA owned by PEPCA, Petrobras Hispano and/or the CIESA Trust, such indirect Transfer of Shares shall be subject to: (a) fulfillment of all conditions and obligations pursuant to Article IV hereto, (b) assumption by the Selling Party of all tax costs for PEPCA, Petrobras Hispano and/or the CIESA Trust triggered by such indirect transfer; (c) compliance with Applicable Laws and any regulatory authorizations required: and (d) that the indirect transfer does not adversely affect the rights of the Non-Selling Party as Shareholder of either PEPCA, Petrobras Hispano or the CIESA Trust, as a the case may be.
(b) In order to allow a Party to exercise the First Offer Right (the “Selling Party”), the Selling Party shall provide to the other Party (the “Non-Selling Party”) a written notice informing that it is willing to sell all of the Selling Party’s Shares (the “FOR Shares”), the price –payable in cash- upon which it is willing to sell the FOR Shares, payment manner and all other material terms and conditions (a “Section 4.3 FOR Notice”). Section 4.3 FOR Notice shall be deemed an irrevocable offer to sell to the Non-Selling Party the FOR Shares subject to the terms and conditions set forth therein and the other applicable term of the Agreement.
(c) Each Party may exercise its First Offer Right and purchase the FOR Shares under the terms set forth in the Section 4.3 FOR Notice, by delivering written notice (a “FOR Exercise Notice”) to the Non-Selling Party, with a copy to the SC, within twenty (20) Business Days after receiving the Section 4.3 FOR Notice (the “FOR Exercise Notice Period”). Non-Selling Party may acquire the FOR Shares directly or through any of its Affiliates.
(d) If the Non-Selling Party does not elect to purchase the FOR Shares by the end of the FOR Exercise Notice Period, then the Selling Party may Transfer the FOR Shares to any third party to the extent the payable purchase price is equal or higher than the price set forth in the Section 4.3 FOR Notice and subject to the general requirements for Transfer set forth in Section 4.1 hereof; provided, however that if such Transfer to a third party is not consummated within ninety (90) Business Days from the date the FOR Exercise Notice Period lapsed (the “Third-Party Selling Period”), then Selling Party shall be required to commence a new process pursuant to Section 4.3 if it wishes to Transfer Shares to a third party and the relevant FOR Shares shall not be Transferred without fully complying again with the provisions of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities4.3.
(e) If Non-Selling Party exercises its First Offer Right, the Company closing shall first offer such New Securities to take place within thirty (30) Business Days following the Investorsdate of receipt by the Selling Party of the FOR Exercise Notice. Each Investor Selling Party shall be entitled to apportion give representations and warranties on (v) its ownership of the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itselfFOR Shares, (iiw) its Affiliates and (iii) its beneficial interest holdersauthority to Transfer the FOR Shares, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless the non-violation by such party’s purchase Transfer of New Securities is otherwise consented to by the Board of Directorsany applicable law or contractual restriction, (y) agrees the validity of such Transfer to enter into this Agreement as an “Investor” under such agreement the Non-Selling Party (provided that or the designated Affiliate) in any Competitor as reasonably determined Transfer document to be executed and delivered by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof)them, and (z) agrees such other customary representations and warranties. As a condition to purchase at least such number closing, the Selling Party shall deliver letters of New Securities as are allocable hereunder to resignations from the Investor holding members of the fewest number SC, the Boards of Investor Shares Petrobras Hispano, PEPCA, CIESA, TGS and any other Derivative SecuritiesTGS Group Company and statutory audit committee members nominated by Selling Party.
(af) The Company purchase price set forth in the Section 4.3 FOR Notice shall give notice (be paid to the “Offer Notice”) to each Investor, stating (i) Selling Party upon delivery of the documentation required for the registration of the Transfer of the FOR Shares in favor of non-Selling Party or its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securitiesdesignee.
(bg) By notification to Each of the Company within thirty (30) days after the Offer Notice is givenWS Group and GIP or its designee shall bear its own taxes, each Investor may elect to purchase or otherwise acquire, at the price costs and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor expenses (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(clegal fees).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
Appears in 2 contracts
Samples: Stock Purchase Agreement (PCT LLC), Stock Purchase Agreement (PCT LLC)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 5.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Holder. Each Investor A Holder shall be entitled to apportion the right of first offer hereby granted to it it, in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor such Holder (“Investor Holder Beneficial Owners”); provided that each such Affiliate or Investor Holder Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of DirectorsBoard, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as an Holder under Sections 7.1Subsections 4.1, 7.2 4.2 and 8.1 5.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor Holder holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each InvestorHolder, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty (30) days [***] after the Offer Notice is given, each Investor Holder may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor Holder (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such InvestorHolder) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-day [***] period, the Company shall promptly notify each Investor Holder that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising InvestorHolder”) of any other InvestorHolder’s failure to do likewise. During the 10-day [***] period commencing after the Company has given such notice, each Fully Exercising Investor Holder may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors Holders were entitled to subscribe but that were not subscribed for by the Investors Holders which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor Holder bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors Holders who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 5.1(b) shall occur within the later of ninety (90) days [***] of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 5.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 5.1(b), the Company may, during the 90-day [***] period following the expiration of the periods provided in Section 8.1(bSubsection 5.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days [***] of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors Holder s in accordance with this Section 8.1Subsection 5.1.
(d) The right of first offer in this Section 8.1 Subsection 5.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsRestated Certificate), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of Notes pursuant to the Company issued under the Employee Share Option Plan.Purchase Agreement. ACTIVE/119579555.22
Appears in 2 contracts
Samples: Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.13.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty (30) 20 days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding) (such amount, the “Pro Rata Share”). At the expiration of such 30-20 day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the 10-10 day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) 90 days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the 90-90 day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) 30 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Series B Preferred Stock to Additional Purchasers pursuant to Section 1.3 of the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Kyverna Therapeutics, Inc.), Investors’ Rights Agreement (Kyverna Therapeutics, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it it. in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securitiesagreement.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and the QIPO; (iii) equity the issuance of shares of Series D Preferred Stock in the Offering; or (iv) shares or securities which the Major Investors holding at least a majority of the Company issued under the Employee Share Option PlanRegistrable Securities held by all Major Investors agree, retroactively or prospectively, shall not be deemed to be New Securities.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Winc, Inc.), Investors’ Rights Agreement (Winc, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held held, by such Investor) Investor bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), Certificate of Incorporation) and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option PlanIPO.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (MongoDB, Inc.), Investors’ Rights Agreement (MongoDB, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities”.
(a) The Company shall give notice (the “Offer Notice”) to each Investorthe Investors, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Common Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety sixty (9060) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty sixty (3060) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities shares of Common Stock issued by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock; (as defined ii) shares of Common Stock or options issued to employees or directors of, or consultants or advisors to, the Company or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors of the Company; (iii) shares of Common Stock actually issued upon the exercise of options or shares of Common Stock actually issued upon the conversion or exchange of convertible securities, in each case provided such issuance is pursuant to the terms of such option or convertible security; (iv) shares of Common Stock issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board of Directors of the Company; (v) shares of Common Stock issued pursuant to the acquisition of another corporation by the Company by merger, purchase of all or substantially all of the assets or other reorganization or to a joint venture agreement, provided that such issuances are approved by the Board of Directors of the Company; (vi) shares of Common Stock issued in connection with sponsored research, collaboration, technology license, development, OEM, marketing or other similar agreements or strategic partnerships approved by the Board of Directors of the Company; (vii) shares of Common Stock issued in the IPO; or (viii) the issuance of shares of Common Stock to Nationwide Children’s Hospital and/or The Ohio State University pursuant to the Company’s Constitutive Documents), (ii) Ordinary Shares issued contractual obligations to Nationwide Children’s Hospital in an initial public offering and (iii) equity securities effect as of the date hereof. In addition, each Investor who is party to the Prior Agreement hereby agrees and acknowledges that Section 4 of the Prior Agreement shall not be applicable to the issuance of any shares of Class D Common Stock pursuant to the Purchase Agreement (and hereby waives any and all notice requirements in connection therewith). Lastly, the Company issued shall not be obligated under this Subsection 4.1 to sell any securities to any Person, including but not limited the Investors, who does not qualify as an accredited investor (as such term is defined in Rule 501 as promulgated under the Employee Share Option PlanSecurities Act) at the time of such offering or sale of New Securities.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Subsection 4.1, the Company may elect to give notice to the Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the New Securities. Each Investor shall have twenty (20) days from the date notice is given to elect to purchase up to the number of New Securities at the price per share such New Securities were sold for that would, if purchased by such Investor, maintain such Investor’s percentage-ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date notice is given to the Investors.
Appears in 2 contracts
Samples: Investor Rights Agreement (AveXis, Inc.), Investor Rights Agreement (AveXis, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor and Penn (each, an “Offeree”). Each Investor An Offeree shall be entitled to apportion the right of first offer hereby granted to it it, in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates Affiliates, including, with respect to Penn, Osage University Partners, and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor such Offeree (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of (i) the Amended and Restated Voting Agreement of even date herewith by and among the Company, the Investors and the other parties named therein (the “Voting Agreement”), and (ii) the Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith by and among the Company, the Investors and the other parties named therein, as an “Investor” or “Key Holder,” as applicable, under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (zy) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative SecuritiesSecurities (provided, that this subsection (y) shall not apply to any Affiliate or Investor Beneficial owner of Penn).
(a) The Company shall give notice (the “Offer Notice”) to each InvestorOfferee, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor Offeree may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor Offeree (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such InvestorOfferee) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor Offeree that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising InvestorOfferee”) of any other InvestorOfferee’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor Offeree may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors Offerees were entitled to subscribe but that were not subscribed for by the Investors Offerees which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor Offeree bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors Offerees who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.Offer
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Passage BIO, Inc.), Investors’ Rights Agreement (Passage BIO, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it it. in such proportions as it deems appropriate, among (i) itself, itself and (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”)Affiliates; provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitorcompetitor (provided that neither Foresite, Fidelity nor Xxxxxxxx may be determined to be a competitor of the Company in any event for any purpose hereunder) or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, Directors and (y) agrees to enter into this Agreement and the Voting Agreement (as defined in the Subscription Agreement), as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors competitor or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees provided further that neither Foresite nor any of its Affiliates, Fidelity nor Xxxxxxxx may be determined to purchase at least such number be a competitor of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and Company in any other Derivative Securitiesevent for any purposes hereunder).
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Major Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A B Preferred Shares and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A B Preferred Shares and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of all Series A B Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A B Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety one hundred and twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; and (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option PlanIPO.
Appears in 2 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (Wave Life Sciences Pte LTD)
Right of First Offer. Subject 3.6.1 If and only if the Second Closing does not occur on or before the Second Closing Deadline as a result of the failure to timely obtain the terms and conditions of Shareholder Approval, this Section 8.1 3.6 shall apply from and applicable securities Lawsafter the Second Closing Deadline until the fifth anniversary thereof.
3.6.2 Except for transfers to Permitted Transferees, if the Company proposes Seller desires to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right Dispose (as defined in Section 4) of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members all or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, portion of any of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate Shares or Investor Beneficial Owner (x) is not any economic interest therein to a Competitorthird party in a privately negotiated transaction, unless such party’s purchase of New Securities is otherwise consented to by the Board of DirectorsSeller shall, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least three (3) Business Days prior to such number Disposition, email and fax a notice of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice such offer (the “Offer Notice”) to each the Investor, stating . The Offer Notice shall contain (i) its bona fide intention the number of Shares that Seller proposes to offer such New Securities, Dispose of; (ii) the number name of such New Securities to be offered, and the proposed third party transferee; (iii) the price proposed purchase price, terms of payment and termsother material terms and conditions of such proposed transfer; and (iv) an estimate, if anyin Seller’s reasonable judgment, upon which it proposes of the fair market value of any non-cash consideration offered by the proposed transferee. The Offer Notice shall be deemed to be an offer such New Securities.
(b) By notification of the subject Shares to the Company within thirty (30) days after Investor on the same terms and conditions as proposed by such third party. Subject to compliance with the Nasdaq Marketplace Rules applicable to the Company, the Investor shall first have the right, but not the obligation, to purchase all, but not less than all, of the Shares specified in the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified therein by emailing and faxing notice of such election to Seller within three (3) Business Days after the initial email or fax delivery of the Offer Notice (the “Private Sale Election Period”). The Investor may choose to have a designee purchase any Shares elected by it to be purchased hereunder, and references to the Investor in this Section 3.6.2 shall refer to such designee as the context requires.
3.6.3 Except for transfers to Permitted Transferees, if Seller desires to Dispose of all or any portion of any of the Subsequent Shares in a sale pursuant to Rule 144 or pursuant to the Seller Registration Statement (other than in a privately negotiated transaction, which shall be governed by Section 3.6.2), Seller shall, at least three (3) trading hours prior to such Disposition, email, fax or phone a notice of such offer (the “Offer Notice”) to the Investor. Without limiting the foregoing, in connection with any Offer Notice via phone, the Investor shall use its best efforts to conduct a live phone conversation with either Xxxxx Xxxxxxxxxx, Xxxxxxx Xxxxx or Xxxxxx Xxxxxx. The Offer Notice shall contain (i) the number of Shares that Seller proposes to Dispose of and (ii) if pursuant to a proposed block sale at a fixed price, such price, or otherwise, the sales price for the Common Stock reported on Nasdaq’s website (xxx.Xxxxxx.xxx) immediately prior to giving the Offer Notice. The Offer Notice shall be deemed to be an offer of the subject Shares to the Investor at the price set forth in the Offer Notice (the “Trading Price”). Subject to compliance with Nasdaq Marketplace Rules applicable to the Company, the Investor shall first have the right, but not the obligation, to purchase all but not less than all, of the Shares specified in the Offer Notice at the Trading Price by delivering email, fax or phone notice of such election to Seller within three (3) trading hours after the initial email, fax and phone delivery of the Offer Notice (the “Public Sale Election Period”). The Investor may choose to have a designee purchase any Shares elected by it to be purchased hereunder, and references to the Investor in this Section 3.6.3 shall refer to such designee as the context requires.
3.6.4 If the Investor has elected to purchase the subject Shares from Seller, the Disposition of the Common Stock shall be consummated as soon as practicable after the delivery of the election notice, but in any event within the later of (i) five (5) days after the expiration of the Private Sale Election Period or Public Sale Election Period, as applicable, or (ii) one (1) Business Day after expiration or termination of the waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, if applicable. At the closing of the purchase of the subject Shares, Seller shall provide representations and warranties as to title to such securities and that there are no liens or other encumbrances on such securities (other than pursuant to this Agreement) and shall sign stock powers (with signatures guaranteed) for transfer of the subject Shares. In the event the Offer Notice provides for any non-cash consideration for the subject Shares, the Investor and Seller shall negotiate in good faith to determine the all-cash equivalent of the consideration proposed in the Offer Notice, up . Investor shall only be required to that portion pay cash for the subject Shares being Disposed of such New Securities which equals by Seller. To the proportion extent that the Ordinary Investor has not elected to purchase all of the subject Shares then held by such Investor being offered, Seller may, within fifteen (including all Ordinary Shares then issuable (directly 15) days after the expiration of the Private Sale Election Period or indirectly) upon conversion and/or exercisePublic Sale Election Period, as applicable, Dispose of the Series A Preferred Shares and any other Derivative Securities then held by subject Shares. In the case of a privately negotiated transaction, such Investor) bears Disposition shall be to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to third parties identified in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not no less than, than 95% of the price per share specified in the Offer Notice and upon on other material terms no more favorable to the offeree than, such third parties than those specified in the Offer Notice. If A Disposition following the Company does Investor’s failure to timely elect to purchase pursuant to Section 3.6.3 shall not enter into an agreement for be subject to any price limits or other restrictions (except as to the sale number of Shares sold). In the New Securities within event that such period, or if such agreement Disposition is not consummated within thirty such time period for any reason or, in the case of a privately negotiated transaction, if the price per share or other material terms of such Disposition become materially more favorable to such third parties identified in the Offer Notice (30) days which in the case of price for a privately negotiated transaction shall mean less than 95% of the execution thereofprice identified in the Offer Notice), then the right restrictions provided hereunder for herein shall again be deemed to effective, and no Disposition of the subject Shares may be revived and such New Securities shall not be offered unless first reoffered made thereafter without again offering the same to the Investors Investor in accordance with this Section 8.13.6.
(d) The right 3.6.5 For purposes of first offer in this Section 8.1 Agreement, “Permitted Transferee” shall not be applicable to mean: (i) Exempted Securities the spouse, lineal descendants (as defined including by adoption), heirs, executors, administrators, testamentary trustees, legatees or beneficiaries of Seller (or its Permitted Transferees); (ii) any trust, the beneficiaries of which include only Permitted Transferees referred to in clause (i) and spouses and lineal descendants (including by adoption) of Permitted Transferees referred to in clause (i); (iii) a corporation, partnership or limited liability company, a majority of the Company’s Constitutive Documentsequity of which is owned and controlled by Seller or any Permitted Transferees referred to in clauses (i), (ii) Ordinary Shares issued in an initial public offering ), or (iii); and (iiiiv) equity securities a donee which is a charity; provided, that any such Permitted Transferee referred to in the foregoing clauses other than clause (iv) agrees in writing to be bound by the terms of the Company issued under the Employee Share Option Planthis Section 3.6.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Prides Capital Partners, LLC), Securities Purchase Agreement (Ediets Com Inc)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Major Investor and Fidelity Investor (each an “Offeree,” and collectively, the Investors“Offerees”). Each Investor An Offeree shall be entitled to apportion the right of first offer hereby granted to it it, in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates Affiliates, and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor such Offeree (“Investor Offeree Beneficial Owners”); provided that each such Affiliate or Investor Offeree Beneficial Owner Owner, as applicable, (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as an Investor under Sections 7.1Subsections 3.1, 7.2 3.2, 3.3 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares shares of Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each InvestorOfferee, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor Offeree may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor Offeree (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such InvestorOfferee) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding)Securities. At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor Offeree that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising InvestorOfferee”) of any other InvestorOfferee’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor Offeree may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors Offerees were entitled to subscribe but that were not subscribed for by the Investors Offerees which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor Offeree bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors Offerees who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors Offerees in accordance with this Section 8.1Subsection 4.1. Notwithstanding anything to the contrary, the rights set forth in Subsection 4.1 may not be amended, modified or terminated and the observance of any term hereof may not be waived with respect to any Offeree without the written consent of such Offeree, unless such amendment or waiver applies to all Offerees in the same fashion (it being agreed that a waiver of the provisions of Subsection 4.1 with respect to a particular transaction shall not be deemed to apply to all Offerees in the same fashion if the Offerees approving such waiver remain able to purchase securities in such transaction, either directly or by assignment of such purchase right to their affiliate(s), where another Offerees is no longer able to purchase securities in such transaction as a result of such waiver).
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering a Qualified IPO; and (iii) equity securities the issuance of shares of Preferred Stock to a Purchaser pursuant to the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Karuna Therapeutics, Inc.), Investors’ Rights Agreement (Karuna Therapeutics, Inc.)
Right of First Offer. (a) Subject to the terms and conditions specified in this Section 8.01, the Company hereby grants to each Holder the right of first offer to purchase a pro rata share of New Securities (as hereinafter defined) which the Company may, from time to time, propose to sell and issue; provided, however, that any Holder shall have such right of first offer only if the percentage of outstanding Common Stock owned (or into which the Shares are convertible) by such Holder would be diluted by 10% or more in the aggregate by any such sale (or any series of sales over any 48 month period) of New Securities. A Holder's pro rata share, for purposes of this Section 8.1 and right of first offer, is the ratio of the number of shares of Common Stock owned by such Holder immediately prior to the issuance of the New Securities, assuming full conversion of the Shares, to the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities, assuming full conversion of the Shares. Subject to applicable securities Lawslaws, each Holder shall have a right of over allotment such that if the Company proposes any Holder fails to offer or sell any exercise its right under hereunder to purchase its pro rata share of New Securities, the Company shall first offer other Holders may purchase the nonpurchasing Holder's portion or a pro rata basis within 10 days from the date such nonpurchasing Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities to the InvestorsSecurities. Each Investor Holder shall be entitled to apportion the right of first offer hereby granted to it among itself and its partners, shareholders and affiliates in such proportions as it deems appropriate. As used in this Article VIII, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under "Holders" means the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares Purchasers and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty (30) days after the Offer Notice is given, each Investor may elect to purchase persons or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to entities that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, beneficially own shares of the Series A Convertible Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)Stock.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
Appears in 2 contracts
Samples: Series a Convertible Preferred Stock Purchase Agreement (Eccs Inc), Series a Convertible Preferred Stock Purchase Agreement (Eccs Inc)
Right of First Offer. (a) Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of DirectorsBoard, and (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(ab) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(bc) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(c) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(cd) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(c), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(c), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(de) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Preferred Stock issued in an initial public offering pursuant to the Purchase Agreement; and (iii) equity securities shares of Common Stock issued in the Company issued under the Employee Share Option PlanIPO.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Vir Biotechnology, Inc.), Investors’ Rights Agreement (Vir Biotechnology, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, itself and (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative SecuritiesAffiliates.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Preferred Stock to the Purchasers pursuant to the Purchase Agreement.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Subsection 4.1, the Company may elect to give notice to the Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the Company issued under New Securities. Each Investor shall have twenty (20) days from the Employee Share Option Plandate notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Investor, maintain such Investor’s percentage-ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Aptinyx Inc.), Investors’ Rights Agreement (Aptinyx Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to (i) each Major Investor, and (ii) only in the Investorsevent that such an offer or sale of New Securities is a financing in which BMS is entitled to participate in accordance with the provisions of Section 8.1.2 of the BMS License Agreement – also to BMS. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and the Stockholders Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.13.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each InvestorMajor Investor and, if applicable in accordance with the foregoing, also to BMS, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty fourteen (3014) days after the Offer Notice is given, each Major Investor (and, if applicable in accordance with the foregoing, BMS) may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares number of shares of Common Stock of the Company then issued and outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock); provided, that if BMS is entitled to purchase or otherwise acquire a portion of such New Securities in accordance with Section 8.1.2 of the BMS License Agreement, then the number of New Securities each Major Investor is entitled to purchase or acquire hereunder shall be proportionally reduced to the extent required (if at all required) to allow the sale to BMS of that number of New Securities it has elected to purchase or otherwise acquire in such financing in accordance with Section 8.1.2 of the BMS License Agreement, and any other Derivative provided, further, that, notwithstanding anything to the contrary and unless approved by holders of at least a majority of the Registrable Securities then outstandingoutstanding and held by the Major Investors, in no event shall BMS be entitled to purchase or otherwise acquire any New Securities in excess of the amount it is entitled to purchase in such financing pursuant to Section 8.1.2 of the BMS License Agreement (i.e. as required in order to maintain its eight percent (8.0%) ownership interest in Company (on a fully diluted basis)). At the expiration of such 30-fourteen (14) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Investors Major Investors, which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety one hundred twenty (90120) days of after the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option PlanIPO.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Ayala Pharmaceuticals, Inc.), Investors’ Rights Agreement (Ayala Pharmaceuticals, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement of even date herewith among the Company, the Investors and the other parties named therein (the “Voting Agreement”) and the Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.13.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares shares of Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty ten (3010) business days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-ten (10) business day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the 10-five (5) business day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and (iii) equity securities terms of the Company issued under New Securities. Each Major Investor shall have twenty (20) days from the Employee Share Option Plandate notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage-ownership position, calculated as set forth in Section 4.1(b) before giving effect to the issuance of such New Securities.
Appears in 2 contracts
Samples: Investors' Rights Agreement (Longboard Pharmaceuticals, Inc.), Investors' Rights Agreement (Longboard Pharmaceuticals, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Significant Investor. Each A Significant Investor shall be entitled to apportion the right of first offer hereby granted to it it, in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Significant Investor (“Investor Beneficial Owners”); provided that provided, that, each such Affiliate or Investor Beneficial Owner Owner: (x) is has not reasonably been determined to be a CompetitorCompetitor or FOIA Party by the Board of Directors, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, and (y) agrees to enter into this Agreement and each of the Voting Agreement and the Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that that, any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Significant Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Significant Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Significant Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held held, by such Investor) Significant Investor bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Significant Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Significant Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Significant Investors were entitled to subscribe but that were not subscribed for by the Significant Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety one hundred and twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Significant Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), and (ii) Ordinary Shares New Securities issued in an initial public a Qualifying Transaction, a Non-Qualifying Transaction or any registered offering and (iii) equity securities of by the Company issued under the Employee Share Option PlanCompany.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (OvaScience, Inc.), Investors’ Rights Agreement (OvaScience, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held held, by such Investor) Investor bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety one hundred and twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Series B Preferred Stock pursuant to the Purchase Agreement.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the Company issued under New Securities. Each Investor shall have twenty (20) days from the Employee Share Option Plandate notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Investor, maintain such Investor’s percentage-ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date notice is given to the Investors.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Flex Pharma, Inc.), Investors’ Rights Agreement (Flex Pharma, Inc.)
Right of First Offer. Subject to the terms and conditions provisions of this Section 8.1 6.2, from and applicable securities Lawsafter the later to occur of (A) July 1, if 2014, and (B) the Company proposes to offer or sell any New Securitiesdate on which the Building is 100% leased (such later date, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among “ROFO Date”) and provided that (i) itselfas of the date of the ROFO Notice (hereinafter defined), there is no Event of Default then continuing, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitordate of the ROFO Notice, unless such party’s purchase of New Securities is otherwise consented to by Tenant meets the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offeredOccupancy Threshold, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty (30) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date on which the Available Space is expected to be delivered to Tenant, there remain at least five (5) years left in the Term (it being understood and agreed that Tenant shall have the Offer Notice is given and right to elect to unconditionally exercise its option to extend the date of initial sale of New Securities Term pursuant to Section 8.1(c).
1.2 above, if any such right remains in force, if necessary to meet this precondition (cprovided that the determination of the Extension Term Base Rent shall occur as if Tenant provided its Extension Notice twelve (12) If all New Securities referred months prior to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(bthen-current term), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at Tenant shall have a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The continuous right of first offer to lease the other rentable areas of the Building (the “ROFO Space”) if, as and when the same shall become available for lease (as reasonably determined by Landlord, the “Available Space”), in their as-is condition, broom clean, free of personal property and decommissioned in accordance with reasonable industry standards, at then-fair market rent (based on such condition) (“ROFO FMR”), for a term co-terminus with the Term hereof, and otherwise upon the terms and conditions specified in the ROFO Notice. Tenant’s right of first offer under this Section 8.1 shall not be applicable 6.2 is further subject to (i) Exempted Securities (all extension rights existing as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option PlanROFO Date.
Appears in 2 contracts
Samples: Lease Agreement (uniQure B.V.), Lease Agreement (uniQure B.V.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, itself and (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”)Affiliates; provided that that, each such Affiliate or Investor Beneficial Owner (x) is not a Competitorcompetitor of the Company as reasonably determined by the Board of Directors, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Third Amended and Restated Voting Agreement and Second Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that that, any Competitor competitor of the Company as reasonably determined by the Board of Directors shall not be entitled to any rights as an Investor under Sections 7.1Subsections 3.1, 7.2 and 8.1 3.2 or 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities. For purposes of this Agreement, neither Celgene Corporation nor its Affiliates are “a competitor of the Company”.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Common Stock that are not Default Conversion Shares then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingand excluding any Default Conversion Shares). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Common Stock that are not Default Conversion Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock, that are not Default Conversion Shares, issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety forty-five (9045) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsRestated Certificate), ; and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Subsection 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and (iii) equity securities terms of the Company issued under New Securities. Each Investor shall have twenty (20) days from the Employee Share Option Plandate notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage- ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date notice is given to the Major Investors.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Cyteir Therapeutics, Inc.), Investors’ Rights Agreement (Cyteir Therapeutics, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that that, each such Affiliate or Investor Beneficial Owner Owner: (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of DirectorsDirectors and each other Major Investor, (y) agrees to enter into this Agreement and each of the Amended and Restated Voting Agreement and Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that that, any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a 5% Holder or a Major Investor under Sections 7.13.1, 7.2 3.2, 3.3 and 8.1 4.1 hereof, as applicable), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held held, by such Investor) Major Investor bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the 90-day ninety (90)-day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), Securities; and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and (iii) equity securities terms of the Company issued under New Securities. Each Major Investor shall have twenty (20) days from the Employee Share Option Plandate notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage-ownership position, calculated as set forth in Section 4.1(b) before giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date notice is given to the Major Investors.
Appears in 2 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (Rapid7 Inc)
Right of First Offer. Subject During the Lease Term, Landlord -------------------- hereby grants to the Tenant named in the Summary and not any assignee, sublessee or other transferee of Tenant's interest in this Lease ("ORIGINAL TENANT") a one-time right of first offer with respect to the adjacent 125,000 rentable square feet of space of the 250,000 square foot building located at 00000 X. Xxx Xxxx Xxxxxx, City of Industry, California (the "EXPANSION SPACE"), as set forth on Exhibit A-1 attached hereto. Notwithstanding the foregoing, such first offer ----------- right of Tenant shall commence only following the expiration or early termination of the existing lease of the Expansion Space (including any renewal of such lease, whether or not such renewal is pursuant to an express written provision in such lease, and regardless of whether any such renewal is consummated pursuant to a lease amendment or a new lease), and such first offer right shall be subordinate to all presently existing rights of all other present tenants (as of September 3, 1998) of Landlord to lease the Expansion Space (whether or not pursuant to rights of first offer, expansion options, must-take requirements or otherwise), and regardless of whether such tenant's exercise of such right is consummated in a new lease or a lease amendment (individually and collectively, the "SUPERIOR RIGHT HOLDER") with respect to such Expansion Space. Tenant's right of first offer shall be on the terms and conditions of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty (30) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer set forth in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.Article 17. ----------
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it such Major Investor in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitorcompetitor or FOIA Party (provided, that the parties hereto acknowledge and agree that Novartis is not a competitor), unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, Directors and (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors competitor or FOIA Party shall not be entitled to any rights as an Investor under Sections 7.1Subsections 3.1 or 3.2 hereof; and provided, 7.2 further that the parties hereto acknowledge and 8.1 hereofagree that Novartis is not a competitor), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the an “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it the Company proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.Major
Appears in 1 contract
Samples: Investors’ Rights Agreement (Poseida Therapeutics, Inc.)
Right of First Offer. Subject (a) Except in the case of the permitted Transfers as contemplated under Section 25.4, if a Co-Owner (in this Section 25.3, the “Selling Co-Owner”) wishes to Transfer all of its Participation Interest (the “Offered Participation Interest”) to a Person other than the other Co-Owner, such Transfer shall not be permitted unless the Selling Co-Owner first offers (the “Seller’s Offer”) to the other Co-Owner (the “Non-Selling Co-Owner”) the right to purchase, at the sole option of the Non-Selling Co-Owner, the Offered Participation Interest, upon the terms and conditions of set forth in this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company 25.3;
(b) The Selling Co-Owner shall first offer such New Securities deliver to the Investors. Each Investor Non-Selling Co-Owner notice in writing of the Seller’s Offer (a “Sale Notice”), which Sale Notice shall be entitled contain all necessary information with respect to apportion the right proposed Seller’s Offer including, without limiting the generality of first offer hereby granted to it in such proportions as it deems appropriate, among the foregoing:
(i) itself, (ii) its Affiliates the proposed purchase price and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, timing of payment of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by consideration for the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.Offered Participation Interest;
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number form of such New Securities to consideration, which must be offered, and in cash (Canadian or US $) and/or power; and
(iii) the price other material terms of sale, including representations, warranties, covenants, agreements and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty (30) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)conditions.
(c) If all New Securities referred to No term or condition (for certainty, other than the purchase price) shall be permitted in the Seller’s Offer Notice are that would have the effect of preventing BC Hydro (by virtue of the fact that BC Hydro is a Crown corporation and/or regulated utility) from completing the purchase and sale if it were to agree to the Seller’s Offer as compared to any other Person that is not elected to be purchased or acquired as provided in Section 8.1(b)a Crown corporation and/or regulated utility (for example, the Company may, during need for BC Hydro to maintain the 90-day period following the expiration honour of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified Crown in the Offer Notice. If context of its obligations to First Nations and to obtain approval from the Company does not enter into an agreement for BCUC and the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed time needed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1satisfy those requirements).
(d) The right At any time within 60 days after receipt of first offer in this Section 8.1 shall not be applicable the Sale Notice, the Non-Selling Co-Owner may elect to (i) Exempted Securities (as defined purchase the Offered Participation Interest for a price equal to that set forth in the Company’s Constitutive DocumentsSale Notice and on such other terms and conditions of sale that are not materially less favourable to the Selling Co-Owner than those contained in the Sale Notice, by giving written notice of such intention to the Selling Co-Owner (the “Reply Notice”), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
Appears in 1 contract
Samples: Co Ownership and Operating Agreement (Teck Resources LTD)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor of the Company, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement, the Voting Agreement and the Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by of the Board of Directors Company shall not be entitled to any rights as an Investor under Sections 7.1Subsections 3.1, 7.2 3.2, 3.3 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Series C Preferred Stock pursuant to the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Keros Therapeutics, Inc.)
Right of First Offer. Subject (a) Except for Transfers permitted under this Agreement, Transfers pursuant to a registration statement filed with the terms and conditions Commission or similar regulatory agency of this Section 8.1 and applicable securities Lawsa foreign jurisdiction, if the Company proposes Transfers in accordance with Rule 144, Stockholders may not Transfer Shares to offer any person or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, entity unless such party’s purchase of New Securities is otherwise consented transferring Stockholder (an "Offering Stockholder") first offers such Shares to by be Transferred (the Board of Directors, (y"Offered Shares") agrees to enter into all Stockholders who are then parties to this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice below (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number "Right of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New SecuritiesFirst Offer").
(b) By notification In order to offer any Offered Shares, the Offering Stockholder shall give written notice (an "Offer Notice") of the proposed Transfer to all Stockholders who then are parties to this Agreement setting forth, in reasonable detail, the Offering Stockholder's intent to make such proposed Transfer, the number of Offered Shares, the proposed date of consummation of such Transfer (if known), the proposed purchase price per Share (including, if known, the amount of cash or other property or consideration to be received upon the consummation of the Transfer) (the "Offered Price Per Share"), any proposed sales commission or advisory fees, and any other material terms and conditions of the proposed Transfer to the Company extent then known.
(c) Each Stockholder who is a party to this Agreement shall then have the irrevocable right, exercisable within thirty (30) days after the Offer Notice is givengiven in accordance with the requirements of Section 12.2 hereof (the "Notice Period"), each Investor may elect to purchase or otherwise acquiresuch portion of the Offered Shares as the number of Shares owned by such Stockholder bears to the total number of Shares owned by all Stockholders (excluding Shares owned by the Offering Stockholder), at a price per Share equal to the price Offered Price Per Share and on the payment terms specified in the Offer Notice; provided, up however, that the Offered Price Per -------- ------- Share for the Offered Shares shall be reduced by the difference (if positive) between (i) the per Share amount of proposed sales commissions and advisory fees specified in the Offer Notice and (ii) the per Share amount of any placement, investment advisory or other similar fees (in the aggregate amount not to that portion exceed one percent (1%) of the gross purchase price for the Offered Shares) payable by the Offering Stockholder in respect of the sale of the Offered Shares. Each Stockholder who is a party to this Agreement may exercise his, her or its Right of First Offer by delivering to the Offering Stockholder a notice of such New Securities which equals exercise (an "Exercise Notice") within the proportion that the Ordinary Shares then held by such Investor (including Notice Period. If any Stockholder wishes to purchase less than all Ordinary Shares then issuable (directly of his, her or indirectly) upon conversion and/or exercise, as applicable, its proportionate share of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exerciseOffered Shares, as applicablehe, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company she or it shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to specify the number of shares specified aboveOffered Shares he, up she or it wishes to purchase in his, her or its Exercise Notice. Any Offered Shares that portion a Stockholder shall have not elected to purchase during the Notice Period shall be reoffered thereafter to all Stockholders who have elected to purchase the full number of Shares offered to them. Such reoffer shall remain open for ten (10) days commencing on the date on which written notice of such reoffer is given in accordance with the requirements of Section 12.2 hereof. Each such Stockholder who is reoffered Offered Shares shall notify the Offering Stockholder in writing within such ten (10) day period of the New Securities for which the Investors were number of such reoffered Offered Shares such Stockholder desires to purchase (such Stockholder's "Designated Shares") and shall be entitled to subscribe but purchase that were not subscribed for by the Investors number of such reoffered Offered Shares which is equal to the proportion that the Ordinary Shares issued and held, or issuable lesser of (directly or indirectlyx) upon conversion and/or exercise, as applicable, of Series A Preferred such Stockholder's Designated Shares and any other Derivative Securities then held(y) the total number of such reoffered Offered Shares multiplied by a fraction, by the numerator of which is such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Stockholder's Designated Shares and any other Derivative Securities then held, by the denominator of which is the aggregate Designated Shares of all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Stockholders.
(d) The right closing of first offer the purchase and sale of the Offered Shares shall occur on a date not later than sixty (60) days after the date on which the Exercise Notice is given (or such later date as is the earliest date on which the purchase may be completed in this Section 8.1 shall not be compliance with all applicable to (i) Exempted Securities (as defined laws, rules and regulations), and at the time and place provided for in the Company’s Constitutive Documents)Offer Notice.
(e) If any Offered Shares are not to be so purchased by Stockholders exercising their rights during such thirty (30) day and/or ten (10) day periods, (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of as the Company issued under the Employee Share Option Plan.case may be, then, for a period
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Major Investor (provided that the InvestorsBoard of Directors has not reasonably determined that such Major Investor is a Competitor). Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” investor under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares and any other Derivative SecuritiesPreferred Stock.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities Stock then held by such Major Investor, but excluding all other Derivative Securities) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any Stock then outstanding, but excluding all other Derivative Securities then outstandingand excluding shares available to grant under any equity incentive plan) (the “Pro Rata Portion”). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities Stock then held, held by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities Stock then held, held by all Fully Exercising Investors who wish to purchase such unsubscribed shares, in each case excluding any other Derivative Securities. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Series B Preferred Stock pursuant to the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Gemini Therapeutics, Inc. /DE)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it it, in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, Directors and (y) agrees to enter into this Agreement and each of the Fourth Amended and Restated Voting Agreement (the “Voting Agreement”) and the Fourth Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securitiesagreement.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding held by all the Investors (assuming full including all shares of Common Stock issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of all Series A the Preferred Shares Stock and any other Derivative Securities then outstandingheld by the Investors). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO, and (iii) equity securities the issuance of shares of Series B Preferred Stock pursuant to the Company issued under the Employee Share Option PlanSeries B Purchase Agreement.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) itself and its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”)Affiliates; provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and the Voting Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding)Securities. At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety one hundred and twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of shares of Preferred Stock to Additional Purchasers pursuant to Subsection 1.3 of the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates or Advisory Investors having the same or affiliated registered investment advisor and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial OwnersOwner”), in each case in such proportions as it deems appropriate; provided that that, upon the purchase of any New Securities, each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that, any such Affiliate or Investor Beneficial Owner that any is a Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 3.1 and 8.1 3.2 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then Common Units issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Units and any other vested Derivative Securities then held held, by such Investor) Major Investor bears to the total Ordinary Shares Common Units of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Units and any other vested Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares Units available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares Units specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Units issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Units and any other vested Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Units issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Units and any other vested Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed sharesUnits. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety one hundred twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Excluded Securities (as defined in the Company’s Constitutive DocumentsOperating Agreement), ; and (ii) Ordinary Shares Common Units issued in the IPO or an initial public offering and Up-C Restructuring.
(iiie) equity securities The right of first offer set forth in this Section 4.1 shall terminate with respect to any Major Investor who fails to purchase, in any transaction subject to this Section 4.1, some portion of the Company issued under the Employee Share Option PlanNew Securities allocated to such Major Investor pursuant to this Section 4.1. Following any such termination, such Investor shall no longer be deemed a “Major Investor” for any purpose of this Section 4.1.
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Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, Competitor unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, Directors and (y) agrees to enter into this Agreement and each of the Amended and Restated Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option PlanIPO.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Talaris Therapeutics, Inc.)
Right of First Offer. Subject (a) Except for transfers pursuant to any put right of any Stockholder or any call right of the Company and except for transfers pursuant to Section 2.2, if at any time any Stockholder other than MidMark desires to transfer any of his or its shares in the Company (the "Offered Shares"), the Stockholder shall offer those shares to the Company and to the other Stockholders (by giving them notice (the "Offer Notice") stating the number of shares subject to the offer, the price at which they are offered, and the other terms and conditions of this Section 8.1 the offer, including the name and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, address of the Investor (“Investor Beneficial Owners”specific offeree(s); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities).
(b) By notification The Company and the other Stockholders shall have the right to purchase the Offered Shares in the following priority:
(i) first up to all the Offered Shares to Mayo;
(ii) second, to the Company within thirty (30) days after extent of any remaining Offered Shares, to the Offer Notice is givenother Stockholders, pro rata based upon the Relative Proportions of each Investor may elect of them, with each of them possessing the right to purchase or otherwise acquire, at any Offered Shares declined by the price and other Stockholders pro rata based on the terms specified in Relative Proportions of each of them; and
(iii) third, to the Offer Noticeextent of any remaining Offered Shares, up to the Company. For purposes of this Section 2.5, the "Relative Proportion" of any Stockholder shall mean that portion of such New Securities which equals the proportion that the Ordinary Offered Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears equal to the total Ordinary number of Offered Shares multiplied by a fraction the numerator of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition which is equal to the number of shares specified above, up owed by such Stockholder prior to that portion such purchase and the denominator of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion number of shares owned by all Stockholders prior to such purchase that are eligible, and that have elected, to purchase the Ordinary Shares issued and heldOffered Shares. For the purpose of this calculation, or shares of the Company's common stock issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, held by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing stockholders or upon exercise of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If warrants then held by all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder stockholders shall be deemed to be revived and such New Securities then held by stockholders
(c) The option shall not be offered unless first reoffered exercisable by notice (the "Acceptance Notice") given to the Investors selling Stockholder and to the other Stockholders within 30 days after the date of the notice from the selling Stockholder. If the Stockholders and the Company, as applicable, do not exercise their respective options to purchase all the Offered Shares, none of the Offered Shares shall be purchased by any of them and, at any time within 180 days after the expiration of the other Stockholders' options, the selling Stockholder may transfer the Offered Shares to a third party at a price and on terms and conditions no less favorable to the selling Stockholder than those stated in accordance with the offer. But if the transfer is not made within that 180-day period, those shares shall again be subject to this Section 8.12.5. No transfer to a third party may be made, however, unless the transferee executes and delivers a written agreement (in form and substance satisfactory to the Company) to be bound by all the provisions of this Agreement that were applicable to the Stockholder who transferred the share to him or it. After any such transfer, each reference in this Agreement to the Stockholders shall include the transferee.
(d) The right of first offer in If an option is exercised under this Section 8.1 2.5, the persons exercising the option shall not have a period of 30 days after the date of the Acceptance Notice to arrange financing and the closing of the purchase shall be applicable to (i) Exempted Securities (as defined in held at the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities offices of the Company issued under on a date not more than 30 days later. At the Employee Share Option Planclosing, the purchaser or purchasers shall make any payment required to be paid at the closing and, if called for by the terms of the purchase, shall deliver a promissory note or notes for the balance, and the selling Stockholder shall deliver to the purchaser or purchasers a certificate or certificates for the shares being sold, duly endorsed in blank for transfer and with all requisite stock transfer tax stamps attached. If a selling Stockholder is the personal representative of a deceased individual Stockholder, that Stockholder shall also deliver appropriate estate tax waivers.
Appears in 1 contract
Samples: Stockholders and Registration Rights Agreement (Clearview Cinema Group Inc)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities by such Affiliate or Investor Beneficial Owner is otherwise consented to by the Board of Directors, and (y) agrees to enter into become a party to this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor or Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety one hundred twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the 90-one hundred twenty (120) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), or (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Subsection 4.1, the Company may elect to give notice to the Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and (iii) equity securities terms of the Company issued under New Securities. Each Investor shall have twenty (20) days from the Employee Share Option Plandate notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Investor, maintain such Investor’s percentage-ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Eliem Therapeutics, Inc.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it such Major Investor in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitorcompetitor or FOIA Party (provided, that the parties hereto acknowledge and agree that Novartis is not a competitor), unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, Directors and (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors competitor or FOIA Party shall not be entitled to any rights as an Investor under Sections 7.1Subsections 3.1 or 3.2 hereof; and provided, 7.2 further that the parties hereto acknowledge and 8.1 hereofagree that Novartis is not a competitor), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the an “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it the Company proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-day twenty (20)-day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the 10-day ten (10)-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the 90-day ninety (90)-day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsRestated Certificate), (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO and (iii) equity securities the issuance of shares of Series C Preferred pursuant to the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Poseida Therapeutics, Inc.)
Right of First Offer. Subject (a) If any Stockholder or Stockholders acting in concert (a "TRANSFEROR") desire to Transfer (other than pursuant to an Exempt Transfer) Company Securities that represent, in the terms aggregate, more than 5% of the then outstanding shares of Common Stock (assuming conversion in full of all outstanding Preferred Shares and conditions NVC Shares, and irrespective of the Conversion Limitation), such Transferor shall give each Stockholder (other than the Transferor and its Permitted Transferees, as applicable) that, together with its Permitted Transferees, holds more than 5% of the then outstanding shares of Common Stock (for this Section 8.1 purpose, shares of Common Stock held by a Person shall include shares issuable upon exercise of Company stock options, or directly or indirectly through conversion or exchange of outstanding Preferred Shares and applicable securities LawsNVC Shares, if held by such Person, and irrespective of the Conversion Limitation) and the Company (collectively, the "OPTION HOLDERS") prior written notice of such proposed Transfer, which notice shall (i) specify the amount and type of Company Securities to be Transferred (the "SUBJECT SECURITIES"), the consideration to be received therefor, and the other material terms on which the Transferor proposes to Transfer the Subject Securities and (ii) contain the offer or sell any New Securitiesdescribed below (collectively, the Company "TRANSFEROR'S NOTICE"). The Transferor's Notice shall first contain an offer such New to sell (the "OPTION") the Subject Securities to the Investors. Each Investor shall be entitled to apportion Option Holders in accordance with this Article 3 for the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty (30) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price consideration and on the other terms specified in the Offer Transferor's Notice; provided that to the extent such consideration shall consist of anything other than cash, up each Option Holder shall be entitled, at its option, to that portion instead pay in cash the value of such New Securities which equals the proportion that the Ordinary Shares then held consideration as determined by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, mutual agreement of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects Option Holders so electing to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given pay cash and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such periodTransferor, or if such agreement is not consummated reached within thirty (30) 5 days of receipt of the execution thereofTransferor's Notice, as determined by an investment banker or appraiser of national reputation reasonably acceptable to both the right provided hereunder Transferor and such Option Holders (the fees and expenses of which shall be shared equally by the Transferor, on the one hand, and all such Option Holders requesting such valuation, on the other hand), in which case the date of the Transferor's Notice shall be deemed the date the cash value of such consideration is so determined.
(b) The Company, at the election of the Board (acting by majority vote, excluding, for purposes of this Section (i) if the Transferor is an Investor (or Permitted Transferee thereof), any Investor Designee designated to the Board by such Investor pursuant to Article 2 hereof (and if such Transferor is WCAS (or Permitted Transferee thereof), also excluding Charles Halberg if he is then an Investor Designee of WCAS), and (ii) xx xxx Xxxxxxxror is Richard Barasch or any of his Permitted Transferees or Affiliates, anx Xxxxxxx Xxxxxch is then a director of the Company, Richard Barasch), xxxxx xxxx xxx first right and option, exercisable xx xxx xxxx xxxhin the first [__] days following the date of the Transferor's Notice, to exercise the Option to purchase from the Transferor the Subject Securities pursuant to the Option. If the Option is not exercised by the Company within the first [__] days after the date of the Transferor's Notice, then the other Option Holders shall have the right and option, exercisable at any time within the first [__] days following the date of the Transferor's Notice, to exercise the Option and purchase from the Transferor the Subject Securities pursuant to the Option, in which event, such other Option Holders may elect to purchase the Subject Securities in the proportions upon which they mutually agree or, if they are unable to agree upon an allocation of such Subject Securities among themselves, then in the proportion that the number of shares of Common Stock held by each such Option Holder which desires to participate in the purchase of such Company Securities pursuant to the Option bears to the aggregate number of shares of Common Stock held by all such Option Holders that desire to participate in the purchase of such Company Securities pursuant to the Option. For purposes of the foregoing sentence, shares of Common Stock held by a Person shall include shares issuable upon exercise of Company stock options, or directly or indirectly through conversion or exchange of outstanding Preferred Shares and NVC Shares, held by such Person, and irrespective of the Conversion Limitation. Acceptance of the Option by an Option Holder shall be in a writing delivered to the Transferor and the Company, which shall deliver copies thereof to the other Option Holders.
(c) If the Option is accepted in a manner such that all Company Securities covered by the Transferor's Notice are to be revived purchased by the Option Holders, the Transferor shall, subject to Section 3.03, Transfer such Company Securities free of all liens and encumbrances (other than restrictions imposed by this Agreement) to the respective Option Holder purchasers thereof against delivery by the Option Holder purchaser of the applicable consideration payable to the Transferor therefor. Unless, through exercise of the Option, all the Company Securities proposed to be transferred in the Transferor's Notice are to be acquired by one or more Option Holders, the Transferor may, subject to Section 3.03, either (i) Transfer the Company Securities subscribed for by the Option Holders at the applicable purchase price therefor to the Option Holders or (ii) Transfer the Subject Securities that were subject to the Option to a third party Transferee at the same purchase price set forth in the Transferor's Notice (or at a higher price) and on terms and conditions no less favorable to the Transferor than the terms and conditions set forth in the Transferor's Notice; provided, however, that such New Transfer shall occur no later than 90 days after the date of the Transferor's Notice. If such Transfer does not occur within such 90 day period, then the Company Securities shall not be re-offered unless first reoffered to the Investors Option Holders under this Section 3.02 prior to any subsequent Transfer otherwise covered by this Section 3.02. The transactions contemplated by this Section 3.02 shall be consummated in accordance with this Section 8.13.03.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
Appears in 1 contract
Samples: Stockholders' Agreement (Capital Z Financial Services Fund Ii Lp)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and Permitted Transferees (as defined in the ROFR Agreement) and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Investor (“Investor Beneficial Owners”); provided that each such Affiliate Affiliate, Permitted Transferee or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, Directors and (y) agrees to enter into this Agreement and each of the Voting Agreement and ROFR Agreement as an a “InvestorStockholder” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as an Eligible Stockholder or as an Investor under Sections 7.1, 7.2 Subsections 3.1 and 8.1 3.2 and 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities Stock then held by such Investor) bears to the result of the total Ordinary Shares number of shares of Common Stock of the Company then outstanding held by all Stockholders (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstandingStock). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities Stock then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities Stock then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety one hundred twenty (90120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the 90-one hundred twenty (120) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice, provided that each such Person agrees to enter into this Agreement and each of the Voting Agreement and ROFR Agreement as a “Stockholder” under each such agreement. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), Certificate of Incorporation) and (ii) Ordinary Shares issued in an initial public offering and (iiithe issuance of shares of Series D Preferred Stock to additional purchasers pursuant to Subsection 1.2(b) equity securities of the Company issued under the Employee Share Option PlanPurchase Agreement.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Turnstone Biologics Corp.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 (Right of First Offer) and applicable securities LawsLaws and Orders, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, itself and (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”)Affiliates; provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and the Voting Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under in each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securitiesagreement.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty (30) days [***] after the Offer Notice is given, each Investor may irrevocably elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Equity Securities then held Beneficially Owned by such Investor and its Designated Affiliates (including all Ordinary Shares Equity Securities then issuable (directly or indirectly) upon conversion and/or or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Equity Securities then held by such Investor) bears to the total Ordinary Shares Equity Securities of the Company then outstanding (assuming full conversion and/or or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Equity Securities then outstanding). At the expiration of such 30-day period) (with respect to each Investor, the Company shall promptly notify each Investor “Proportionate Percentage”); provided, however, that elects an Investor’s election to purchase or acquire all New Securities may be revoked in the shares available to it event (each, a “Fully Exercising Investor”i) any of the terms set forth in the Offer Notice are changed or (ii) any other material term that had not been set forth in the Offer Notice is required or included in connection with such Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number acquisition of shares specified above, up to that portion of the such New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed sharesSecurities. The closing of any sale pursuant to this Section 8.1(b4.1(b) (Right of First Offer) shall occur within the later of ninety (90) days [***] of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c) (Right of First Offer); provided, however, that if such sale pursuant to this Section 4.1(b) would require the approval of any Governmental Authority prior to consummating such sale, such closing shall be extended to the date that is [***] after such approval has been obtained or finally denied, but in no event later than [***] after the Offer Notice is given.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b) (Right of First Offer), the Company may, during the 90-day [***] period following the expiration of the periods provided in Section 8.1(b4.1(b) (Right of First Offer), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no not materially more favorable in the aggregate to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.14.1 (Right of First Offer).
(d) The right of first offer in this Section 8.1 4.1 (Right of First Offer) shall not be applicable to issuances of: (i) Exempted Securities (as defined in the Company’s Constitutive Documents), Securities; and (ii) Ordinary Shares securities issued in a Qualified Listing Event or to a new holding company solely for the purposes of a forthcoming Qualified Listing Event. In addition to the foregoing, the right of first offer in this Section 4.1 (Right of First Offer) shall not be applicable with respect to any particular Investor in any subsequent offering or sale of New Securities if (x) at the time of such offering or sale, such Investor is neither a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Actor nor an initial public “accredited investor” as that term is defined in Rule 501(a) of the Securities Act and (y) such offering or sale of Shares is otherwise being offered or made only to qualified institutional buyers or accredited investors, as the case may be.
(e) Notwithstanding anything to the contrary contained herein, in lieu of complying with the provisions of this Section 4.1 (Right of First Offer), the Company may consummate the offering and sale of New Securities without first providing an Offer Notice pursuant to Section 4.1(b) (iii) equity securities Right of First Offer), provided that the Company issued under complies with the Employee Share Option Plan.terms and conditions of this Section 4.1(e) (
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Article II, the Company hereby grants to the Investor a right of this Section 8.1 and applicable securities Laws, if first offer with respect to future sales by the Company of its Shares. Each time the Company proposes to offer or sell any New SecuritiesShares, the Company shall first offer make an offering of such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder Shares to the Investor holding in accordance with the fewest number of Investor Shares and any other Derivative Securities.following provisions:
(a) The Company shall give written notice (the “Offer Notice”"NOTICE") to each Investor, the Investor stating (i) its bona fide intention to offer such New SecuritiesShares, (ii) the number of such New Securities Shares to be offered, offered and (iii) the price and terms, if any, upon which it proposes to offer such New SecuritiesShares.
(b) By written notification from the Investor to the Company given within thirty ten (3010) business days after receipt of the Offer Notice is givenNotice, each the Investor may elect to purchase or otherwise acquireobtain, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities Shares which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) number of shares of Common Stock issued upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock purchased by the Investor pursuant to the Stock Purchase Agreement and any other Derivative Securities then held by such the Investor) , plus the number of shares of Common Stock then issuable upon conversion of the Series A Preferred Stock purchased by the Investor pursuant to the Stock Purchase Agreement and then held by the Investor, bears to the total Ordinary Shares number of shares of Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, and exercise of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase outstanding convertible or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cexercisable securities).
(c) If all New Securities referred to Notwithstanding anything in the Offer Notice are not elected foregoing to be purchased or acquired as the contrary, the rights of Investor provided in Section 8.1(b)this Article II shall not apply to the sale or issuance of any of the following: (A) issuance of up to 551,471 shares of the Series A Preferred Stock to investor(s) other than the Investor, and shares of Common Stock issued or issuable upon conversion of the Series A Preferred Stock; (B) securities issued pursuant to any acquisition that has been approved by the Board or pursuant to any other corporate transaction that has been approved by the Board; (C) securities issued to employees, officers or directors of, or advisors or consultants to, the Company mayCompany, during pursuant to warrant agreements, stock purchase or stock option plans or agreements or other incentive stock or compensatory arrangements approved by the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities Board; (D) securities issued to effect any Person stock split or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in stock dividend by the Company’s Constitutive Documents), ; or (iiE) Ordinary Shares securities issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plana Qualified IPO.
Appears in 1 contract
Samples: Investor's Rights Agreement (Wj Communications Inc)
Right of First Offer. Subject Any Sale of Stock or Common Stock Equivalents (other than a Permitted Transfer) by a Stockholder that, when taken together with all such Sales by such Stockholder and the other members of its Stockholder Group, would exceed either (i) 1% of the Company’s outstanding Common Stock within a 90 day period prior to such Sale or (ii) 4% of the Company’s outstanding Common Stock during a 365 day period prior to such Sale, in each case calculated in accordance with Section 9.1 and without regard to Permitted Transfers, (x) shall be solely for cash consideration and (y) shall be consummated only in accordance with the following procedures:
(a) The Selling Stockholder shall first deliver to the Company and the Other Stockholders a written notice (a “Notice of Sale”) which shall: (i) state the Selling Stockholder’s intention to sell Stock, the amount and type of Stock to be sold (the “Available Stock”), the proposed Sale price and the other material terms of the proposed Sale and (ii) offer the Other Stockholders the option to acquire all of such Stock upon the other terms and subject to the conditions of the proposed Sale as set forth in the Notice of Sale. Any such offer shall remain open and irrevocable for the periods set forth below (and, to the extent such offer is accepted during such periods and the accepting Other Stockholder fulfills the terms and conditions of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated purchase under the Exchange Actoffer, until the consummation of the Investor (“Investor Beneficial Owners”Sale contemplated thereby); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification Following the delivery of the Notice of Sale, each Other Stockholder shall have the right and option, for a period of 30 days thereafter (the “Stockholder Acceptance Period”), to accept all or any part of the Available Stock at the purchase price and upon the other terms and subject to the other conditions stated in the Notice of Sale. Such acceptance shall be made by delivering a written notice to the Company and the Selling Stockholder within thirty the Stockholder Acceptance Period specifying the maximum number of shares such Other Stockholder will purchase (30the “Accepted Stock”). If, upon the expiration of the Stockholder Acceptance Period, the aggregate amount of Accepted Stock exceeds the amount of Available Stock, the Available Stock shall be allocated among the Other Stockholders as follows: (i) days after the Offer Notice is givenfirst, each Investor may elect Other Stockholder shall be entitled to purchase its Proportionate Percentage of any Available Stock, and (ii) second, if any Available Stock has not been allocated for purchase pursuant to clause (i) above, each Other Stockholder that had offered to purchase an amount of Available Stock in excess of its Proportionate Percentage of Available Stock shall be entitled to purchase any or otherwise acquireall of its Proportionate Percentage of the Excess from such Selling Stockholder. Rights under this Article IV may be exercisable by each Stockholder or by each Stockholder Group, and the Stockholders of each Stockholder Group shall be entitled to allocate and re-allocate any Stock purchasable by such Stockholder Group in any manner the Stockholders of such Stockholder Group deems advisable to or among the Stockholders and such Stockholder Group and to any other Person who, at the price and on the terms specified in the Offer Notice, up to that portion time of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to acceptance under this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice 4.1(b), is given and the date of initial sale of New Securities pursuant to Section 8.1(c)a Permitted Transferee.
(c) If effective acceptance shall not have been received as to all New Securities referred of the Available Stock, then all acceptances by Other Stockholders shall automatically be null and void and, subject to Article V, the Selling Stockholder may Sell all, but not less than all, of the Stock offered for Sale pursuant to subsection (a) above, in a bona fide Sale to a third party that is not a Permitted Transferee of such Stockholder at a purchase price and on other terms no less favorable in the Offer aggregate, to the Selling Stockholder than the proposed purchase price and other terms stated in the Notice are not elected to be purchased or acquired as provided in Section 8.1(b)of Sale, the Company may, during the 90-day period following at any time within 120 days after the expiration of the periods provided Stockholder Acceptance Period, as extended by up to 30 days as may be required in Section 8.1(b), offer order to obtain any necessary governmental approvals for such Sale and sell allow for a closing not later than the remaining unsubscribed portion fifth day following receipt of such New Securities to any Person or Persons at a price not less thanapprovals (the “Open Sale Period”). To the extent the Selling Stockholder Sells the Stock so offered for sale during the Open Sale Period, the Selling Stockholder shall promptly notify the Company, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for shall promptly notify the sale of the New Securities within such periodOther Stockholders, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable as to (i) Exempted Securities (as defined in the Company’s Constitutive Documents)amount of Stock, if any, that the Selling Stockholder then owns, (ii) Ordinary Shares issued in an initial public offering and the amount of Stock that the Selling Stockholder has Sold, (iii) equity securities the terms of such Sale and (iv) the name of the Company issued purchaser(s) of any Stock Sold (the “Open Sale Purchaser(s)”). Any Stock sold to an Open Sale Purchaser under this Section 4.2 shall be held by such Open Sale Purchaser free and clear of the Employee Share Option Planrights and restrictions contained in this Agreement. In the event that all of the offered Stock is not Sold by the Selling Stockholder during the Open Sale Period, the right of the Selling Stockholder to Sell such Stock shall expire and the obligations set forth in this Article IV and Article V shall be reinstated and apply to any subsequent proposed Sale.
Appears in 1 contract
Right of First Offer. (a) Subject to the terms and conditions of this Section 8.1 4.7 and applicable securities Lawslaws, if at anytime commencing on the Closing and ending on a date which is the earlier of (i) the Accelerated Payment Date of the Subordinated Notes or (ii) the Maturity Date of the Subordinated Notes, the Company proposes to offer or sell any New Securities, the Company shall first notify each Purchaser of the proposed terms of the offer of such New Securities to the InvestorsSecurities. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each InvestorPurchaser, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor Purchaser may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals up to that portion of such New Securities which equals the proportion that the Ordinary Shares then Common Stock held by such Purchaser Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities convertible securities then held by such InvestorPurchaser) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding)a fully diluted basis . At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor Purchaser that elects to purchase or acquire all the shares New Securities available to it (each, a “Fully Exercising InvestorPurchaser”) of any other InvestorPurchaser’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor Purchaser may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares New Securities specified above, up to that portion of the New Securities for which the Investors Purchasers were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed sharesnon subscribing Purchasers hereunder. The closing of any sale pursuant to this Section 8.1(b4.7(b) shall occur within the later of ninety sixty (9060) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.7(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.7(b), the Company may, during the 90-one hundred eighty (180) day period following the expiration of the periods provided in Section 8.1(b4.7(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors Purchasers in accordance with this Section 8.1.
4.7. (d) The right of first offer in this Section 8.1 section 4.7 shall not be applicable to (i) Exempted Securities (any Exempt Issuance as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.Warrants. ARTICLE V INDEMNIFICATION 5.1
Appears in 1 contract
Right of First Offer. Subject 6.1 Except as otherwise provided in this Agreement or upon the mutual agreement of the Shareholders, the Shareholders agree that they shall not sell, give, encumber, pledge or otherwise transfer, assign or dispose of either voluntarily or by operation of law, all or any part of their shares in NEWCO and/or withdraw from NEWCO within the first three (3) years from the date of incorporation of NEWCO, unless NEWCO has completed an Initial Public Offering in any jurisdiction, at which time this provision shall terminate.
6.2 The Shareholders agree that they will not sell, give, encumber, pledge or otherwise transfer, assign or dispose of, either voluntarily or by operation of law, all or any part of the stock which either of them now owns or may hereafter acquire in NEWCO without first offering such stock to the terms and conditions other Shareholder as provided herein.
6.3 After three (3) years from the date of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right incorporation of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.NEWCO:
(a) The Company If either Shareholder desires to withdraw from NEWCO, the withdrawing Shareholder shall give first provide the non-withdrawing Shareholder with written notice of its intention to withdraw and shall offer (the “Offer Notice”) to each Investor, stating (i"Offer") its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification shares to the Company within thirty (30) days after non-withdrawing Shareholder, whereupon the Offer Notice is givennon-withdrawing Shareholder shall have the irrevocable first right, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated exercisable within thirty (30) days of the execution thereofwithdrawing Shareholder to so withdraw, to purchase the entire equity interest of the withdrawing Shareholder in NEWCO at a price per share equal to the proportionate Book Value Per Share (in the aggregate, the right provided hereunder "Offer Price"). For purposes of this Agreement the "Book Value Per Share" shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to mean the Investors book value set forth in NEWCO's most recent quarterly financial statements, defined in accordance with this Section 8.1the ROC Generally Accepted Accounting Principles, divided by the number of shares of common stock of NEWCO on the date of such financial statements.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
Appears in 1 contract
Samples: Shareholders' Agreement (Omnivision Technologies Inc)
Right of First Offer. Subject (a) Except as otherwise provided in Section 2.01, any Transfer or conversion (other than an Involuntary Conversion) of shares of Class B Stock will be subject to the terms and conditions of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted provisions of this Section 2.03.
(b) Prior to it in such proportions as it deems appropriateeffecting any Transfer or conversion (other than an Involuntary Conversion) of shares of Class B Stock, among the transferring Stockholder shall deliver a written notice (the "Offer Notice") to each Principal Holder, which Offer Notice shall specify (i) itself, the number of shares of Common Stock intended to be Transferred or converted and (ii) its Affiliates and if applicable, the Specified Price (iiias defined below). The Offer Notice shall constitute an irrevocable offer to such non-transferring Principal Holders, for the period of time described below, to sell to such non-transferring Principal Holders all (but not less than all) its beneficial interest holdersof such Common Stock (allocated among such non-transferring Principal Holders as they may agree, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors if they shall not be entitled to any rights under Sections 7.1otherwise agree, 7.2 and 8.1 hereof), and (z) agrees to purchase at least allocated pro rata among such non-transferring Principal Holders based on the number of New Securities as are allocable hereunder to the Investor holding the fewest number shares held of Investor Shares and any other Derivative Securities.
(arecord) The Company shall give notice (the “Offer Notice”) to each Investor, stating at (i) its bona fide intention to offer such New Securitiesthe price set by the transferring Stockholder in the Offer Notice (the "Specified Price"), in the case of a proposed private placement, (ii) the number Current Market Value as of such New Securities the Specified Date (as defined in the Vulcan Stockholder Agreement), in the case of a mandatory conversion pursuant to be offered, and Section 3.02(a) of the Vulcan Stockholder Agreement or (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to Current Market Value as of the Company within thirty (30) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in date of the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including in all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)cases.
(c) If such non-transferring Principal Holders elect to purchase all New Securities referred to in of the Offer Notice are not elected to be purchased or acquired as provided offered Class B Stock at the price described in Section 8.1(b2.03(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable they shall give joint irrevocable notice thereof to the offeree than, those specified in transferring Stockholder within five Business Days of their receipt of the Offer Notice. If such non-transferring Principal Holders shall deliver such a notice, it shall constitute a binding obligation, subject to obtaining any governmental and other similar required approvals, to purchase the Company does not enter into an agreement offered Class B Stock, which notice shall include the date set for the sale closing of such purchase, which date shall be no later than 30 days following the New Securities within delivery of such periodelection notice, subject to extension to the extent necessary to obtain any required antitrust or if other required governmental approvals, which the transferring Stockholder and such agreement is non-transferring Principal Holders shall use their respective reasonable best efforts to obtain as promptly as practicable (the "Determination Date"). To the extent that the closing of any such purchase has not consummated within thirty (30) days of occurred by the execution thereofDetermination Date, the right provided hereunder shall be deemed transferring Stockholder may terminate the relevant agreement to be revived sell the Class B Stock to such non-transferring Principal Holders and such New Securities shall not be offered unless first reoffered sell the Class B Stock in the form of Class A Stock (with conversion effected immediately prior to Transfer) or convert the Investors in accordance with this Section 8.1Class B Stock, as applicable.
(d) The right of first offer in this Section 8.1 If such non-transferring Principal Holders do not respond to the Offer Notice within the required response time period or elect not to purchase the offered Class B Stock, the transferring Stockholder shall not be applicable free to (i) Exempted Securities (as defined Transfer the offered Class B Stock in the Company’s Constitutive Documents)form of Class A Stock (with conversion effected immediately prior to Transfer) or convert the Class B Stock, as applicable; provided, however, that in the case of a Transfer (iix) Ordinary Shares issued in an initial public offering such Transfer is closed within 60 days from the date of the Offer Notice, subject to extension to the extent necessary to obtain required governmental approvals and other required approvals, which the transferring Stockholder and such non-transferring Principal Holders shall use their respective reasonable best efforts to obtain as promptly as practicable and (iiiy) equity securities the per share price at which the Class A Stock or Class B Stock, as applicable, is Transferred is equal to or higher than the Specified Price, in the case of the Company issued under the Employee Share Option Plana Private Placement.
Appears in 1 contract
Samples: Stockholder Agreement (DreamWorks Animation SKG, Inc.)
Right of First Offer. 3.1. Subject to and without derogating from Section 2 above, at any time, and from time to time after the date hereof, if Rivel and/or any of his respective affiliates which are or become the beneficial owners of any Shares (the “Selling Party”) wishes to sell or otherwise transfer, directly or indirectly (each, a “Transfer”), any Shares (the “Offered Shares”), then such Selling Party shall be required to first offer the Offered Shares to Xxxxx (the “Offeree”) by sending the Offeree a written offer (the “Offer”) specifying: (i) the number of Offered Shares that the Selling Party proposes to Transfer; (ii) a representation and warranty that the Offered Shares proposed to be sold or transferred are and will be, as of the time of their proposed Transfer, free and clear of all Encumbrance; and (iii) the price that the Selling Party intends to receive as consideration for the Offered Shares, which shall be stated in cash, and the requested terms of payment thereof, other than in case of Transfers on any stock exchange (including, without limitation, in open market transactions, through the framework of an accepted “blind trustee” in relation to the sale of shares by interested parties in certain periods, or in accordance with Rule 144 under the Securities Act of 1933) (“Public Sales”), in which case the price for the Offered Shares shall not be higher than the average of the closing price of the Ordinary Shares in the 7 trading days preceding the date of delivery of the Offer (the “Average Market Price”); and (iv) if known at such time, the identity of the prospective transferee and any persons controlling such transferee, and the terms offered, including a copy of any proposal, term sheet, letter of intent or other agreement relating thereto.
3.2. The Offer shall constitute an irrevocable offer made by the Selling Party to Transfer to the Offeree the Offered Shares covered by the Offer, upon the terms specified in the Offer and as described below. If the Offeree wishes to purchase the Offered Shares upon such terms, it shall notify the Selling Party of its agreement to purchase the Offered Shares by no later than 14 business days of receipt of the Offer, or three (3) business days in case of Public Sales, indicating the maximum number of Offered Shares it wishes to so purchase. The Selling Party shall be obligated to sell the Offered Shares to the Offerees only if the acceptance of the Offer by the Offeree, in the aggregate, is in respect of all (but not less than all) of the Offered Shares on the terms and conditions as described in the Offer, other than in case of a Public Sale in which Selling Party shall sell to the Offeree the number of Offered Shares indicated in the Offeree’s acceptance notice in a private transaction on the terms and conditions as described in the Offer.
3.3. Other than in case of a Public Sale in which Section 3.4 shall apply, if the Offeree declines to purchase all (but not less than all) of the Offered Shares upon the terms specified in the Offer or does not notify the Selling Party of its agreement to purchase the Offered Shares within the applicable acceptance period mentioned above, then the Selling Party may Transfer all the Offered Shares (but not less than all) to a third party, provided that such Transfer is consummated (i) at a price that is not lower than that specified in the Offer, and on other terms (including, payment terms and any other rights, benefits or privileges provided to the transferee or its affiliates) that are not more favorable to the purchaser than those specified in the Offer, (ii) within 90 days following the expiration of the foregoing applicable acceptance period, and (iii) with respect to any transfer pursuant to an Offer made prior to the expiration of the Restriction Period (except for a Public Sale) the transferee agrees to be bound by the terms of this Agreement to the same extent as the respective Shareholder that effected the Transfer, as if it were an original party hereto, by delivering a counterpart of this Agreement to the other parties hereto and by delivering the proxies required under Section 1 above.
3.4. In case of a Public Sale, if the Offeree accepts the Offer with respect to part but not all of the Offered Shares, declines to purchase any Offered Shares upon the terms specified in the Offer or does not respond to the Offer within the applicable period mentioned above, then the Selling Party may Transfer the Offered Shares or the remaining Offered Shares that were not accepted by the Offeree, provided that such Transfer is consummated (i) at a price that is not lower than that specified in the Offer, and on other terms (including, payment terms and any other rights, benefits or privileges provided to the transferee or its affiliates) that are no more favorable to the purchaser than those specified in the Offer, and (ii) within 30 business days following the expiration of the foregoing applicable acceptance period.
3.5. Any transaction contemplated under the Offer that is not consummated by the Selling Party in compliance with subsections 3.3 or 3.4, as applicable, shall require the Selling Party to again comply with the terms and conditions of this Section 8.1 3.
3.6. If the Offeree agrees to purchase the Offered Shares upon the terms specified in the Offer, the Selling Party shall sell the Offered Shares to the Offerees against payment by the Offeree of the aggregate consideration as specified in the Offer, subject to any tax withholding required pursuant to applicable law. The closing of the purchase of the Offered Shares shall take place on the later of (i) the 14th business day following the acceptance of the Offer by the Offeree, or (ii) the third business day after such time as the regulatory approvals and applicable securities Lawsrequirements with respect to the purchase of such Offered Shares (if any) shall have been satisfied (other than the internal corporate approvals of each of the parties to such transaction which shall be obtained at the entry into such transaction), at such place in Israel as the relevant parties shall agree.
3.7. Any change of control (meaning herein the acquisition or holding of more than 50% of the voting power and a majority of the power to elect directors) of the legal or beneficial owner of the Shares or of any person or entity that controls, directly or indirectly, in any manner whatsoever, such legal or beneficial owner of the Shares, shall constitute a Transfer of all of the Shares held by such person, which Transfer must be conducted in compliance with this Section 3, including the requirement to make an Offer to the Offeree under this Section 3, and the purchase price of the Offered Shares in such case for this purpose shall be the Average Market Price.
3.8. In the event that Rivel proposes to create an Encumbrance that is otherwise permitted pursuant to this Agreement, then such Encumbrance shall be permitted only if the Company proposes person in favor of which the Encumbrance is created or to offer or sell which it is granted acknowledges and agrees in a written document delivered to Xxxxx to be bound by the provisions of Sections 1, 2, 33 and 4 and that any New Securities, the Company shall first offer such New Securities realization of any Encumbrance is subject to the Investorsrights set forth in Sections 1 and 3.
3.9. Each Investor The Offeree shall be entitled to apportion or assign its right to purchase Offered Shares to be purchased among its affiliates and Permitted Transferees as well as third parties designated by the right Offeree.
3.10. The provisions of first offer hereby granted Section 3 shall not apply to it in such proportions as it deems appropriate, among Transfers pursuant to Section 5 (iPermitted Transferees) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under a transaction for the Exchange Act, sale of all of the Investor Company’s issued share capital (“Investor Beneficial Owners”however structured); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder .
3.11. Notwithstanding anything to the Investor holding the fewest number of Investor Shares and contrary in Section 10.14, any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) that a party is required to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification send to the Company within thirty (30) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale party pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities 3 or pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to 4 will only be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer delivered and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable to considered effective: (i) Exempted Securities (as defined in the Company’s Constitutive Documents)if sent by messenger, upon delivery; (ii) Ordinary Shares issued in an initial public offering if sent by electronic mail or facsimile, upon transmission and electronic confirmation of delivery or (iiiif transmitted and received on a non-business day or not during normal business hours at the place of recipient) equity securities of on the Company issued under first business day following transmission and provided that the Employee Share Option Plansender confirms by telephone that the notice was received by the recipient.
Appears in 1 contract
Samples: Shareholders Agreement (RRSat Global Communications Network Ltd.)
Right of First Offer. Subject 4.2.1 All Involuntary Transfers pursuant to Section 4.1 above shall be subject to this Section 4.2. The Stockholder who owns the Shares subject to the Involuntary Transfer (the "Offering Stockholder") shall be deemed, prior to the Involuntary Transfer, to have offered the Shares subject to the Involuntary Transfer (the "Offered Shares") to all Stockholders who are then parties to this Agreement as provided below (the "Right of First Offer").
4.2.2 The Offering Stockholder shall give written notice (an "Offer Notice") of the proposed Involuntary Transfer to all Stockholders who then are parties to this Agreement and to the Secretary of the Company setting forth, in reasonable detail, the facts and circumstances of such proposed Involuntary Transfer, the number of Offered Shares, the proposed date of consummation of such proposed Involuntary Transfer (if known), and any other material terms and conditions of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities proposed Transfer to the Investors. extent then known.
4.2.3 Each Investor shall be entitled Stockholder who is then a party to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by shall then have the Board of Directors shall not be entitled to any rights under Sections 7.1irrevocable right, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company exercisable within thirty (30) days after the Offer Notice is givengiven in accordance with the requirements of Section 4.2.2 hereof (the "Notice Period"), each Investor may elect to purchase all (but not part) of his, her or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor its share (including all Ordinary Shares then issuable (directly or indirectlyas determined below) upon conversion and/or exercise, as applicable, of the Series A Preferred Offered Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, at a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is price per Share equal to the proportion that lesser of (i) the Ordinary Shares issued and heldprice proposed to be paid in any bankruptcy, creditor's or issuable judicial sale or (directly or indirectlyii) upon conversion and/or exercise, the closing sale price per share of the Company's Class A Common Stock on the last trading day (as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears reported on the New York Stock Exchange) prior to the Ordinary Shares issued date of purchase multiplied by a factor of .50 (50%). Each Offering Stockholder shall pay his, her or its own commissions and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of advisory fees in connection with any sale of Shares pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)4.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions of specified in this Section 8.1 4.1, and applicable securities Lawslaws, if in the event the Company proposes to offer or sell any New SecuritiesAdditional Ordinary Shares, the Company shall first offer make an offering of such New Securities Additional Ordinary Shares to the InvestorsInvestors (the “Offerees” and each an “Offeree”) in proportion to their respective shareholding in the Company in accordance with the following provisions of this Section 4.1. Each Any Investor Offeree shall be entitled to apportion the right of first offer hereby granted to it among themselves and their partners, members and Affiliates in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, appropriate provided that such as limited partners, members and Affiliates do not have any interest in any business, company or asset which competes with the business of the Company or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securitiesits Subsidiaries.
(a) The Company shall give notice deliver a notice, in accordance with the provisions of Section 8.4 hereof, (the “Offer Notice”) to each Investor, the Offerees stating (i) its bona fide intention to offer such New SecuritiesAdditional Ordinary Shares, (ii) the number of such New Securities Additional Ordinary Shares to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New SecuritiesAdditional Ordinary Shares.
(b) By written notification to received by the Company Company, within thirty twenty (3020) calendar days after mailing of the Offer Notice is givenNotice, each Investor Offeree may elect to (but not be obligated to) purchase or otherwise acquireobtain, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities Additional Ordinary Shares which equals the proportion that the number of Ordinary Shares then issued and held by such Investor (including all Ordinary Shares then or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares (and any other Derivative Securities securities convertible into, or otherwise exercisable or exchangeable for, Ordinary Shares) then held held, by such Investor) Offeree bears to the total number of Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding)on an as-converted basis. At the expiration of such 30-day period, the The Company shall promptly notify promptly, in writing, inform each Investor Offeree that elects to purchase or acquire all the shares available to it (each, a “Fully Fully-Exercising InvestorHolder”) of any other InvestorOfferee’s failure to do likewise. During the ten (10) day-day period commencing immediately after the Company has given receipt of such noticeinformation, each Fully Fully-Exercising Investor may, by giving notice Holder shall be entitled to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to obtain that portion of the New Securities Additional Ordinary Shares for which any of the Investors Offerees were entitled to subscribe but that which were not subscribed for by the Investors Offerees which is equal to the proportion that the number of Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, held by such Fully Fully-Exercising Investor Holder bears to the total number of Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, held by all Fully Fully-Exercising Investors Holders who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)Additional Ordinary Shares.
(c) If all New Securities Additional Ordinary Shares referred to in the Offer Notice are not elected to be purchased or acquired obtained as provided in Section 8.1(b)4.1(b) hereof, the Company may, during the ninety (90-) day period following the expiration of the periods period provided in Section 8.1(b)4.1(b) hereof, offer and sell the remaining unsubscribed portion of such New Securities Additional Ordinary Shares (collectively, the “Refused Securities”) to any Person person or Persons persons at a price not less than, and upon terms no more favorable to the offeree Offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities Additional Ordinary Shares within such period, or if such agreement is not consummated within thirty ninety (3090) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities Additional Ordinary Shares shall not be offered unless first reoffered to the Investors in accordance with this Section 8.14.1.
(d) The right of first offer set forth in this Section 8.1 shall 4.1 may be freely assigned or transferred except that such right is not be applicable assignable by an Investor to any Competitor (ias defined below) Exempted Securities or connected person (as defined in the Company’s Constitutive Documents), (iiListing Rules) Ordinary Shares issued in an initial public offering and (iii) equity securities of the parent company of the Company issued under which is listed on the Employee Share Option PlanMain Board of The Stock Exchange of Hong Kong Limited.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Amended and Restated Voting Agreement and Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors competitor shall not be entitled to any rights as an Investor or Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (zy) agrees to purchase at least is an “accredited investor” (as such number term is defined in Rule 501 of New Regulation D promulgated under the Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative SecuritiesAct).
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO (other than with respect to the rights of each Series A Lead as provided in Subsection 4.1(e) below); and (iii) equity securities the issuance of shares of Series A Preferred Stock pursuant to the Purchase Agreement.
(e) In connection with an IPO, in the event a Series A Lead indicates a desire to purchase shares of the Common Stock in such IPO, then, subject to compliance with all applicable securities laws and regulations (including, without limitation, applicable rules promulgated by the Financial Industry Regulatory Authority and other such self-regulating organizations), the Company shall, and shall require the managing underwriter or underwriters of such IPO to, offer to such Series A Lead, on terms at least as favorable and at the same price as those granted to any other purchasers of Common Stock in such IPO, the opportunity to purchase up to fifteen percent (15%) of the shares offered to the public in such IPO. If the allocations set forth in the first sentence of this Subsection 4.1(e) are not permissible because of compliance with applicable securities laws and regulations, each Series A Lead shall be entitled to purchase in a separate private placement (which may be conducted, in whole or in part, concurrently with the IPO) the same number of shares of Common Stock as provided in the immediately preceding sentence, which shares shall be at the same price issued in the IPO and shall be deemed to be Registrable Securities. Notwithstanding the foregoing, in the event that the Board of Directors of the Company, following consultation with outside legal counsel to the Company and the managing underwriter or underwriters, believes in good faith that the allocation of shares pursuant to this Subsection 4.1(e) would be materially detrimental to the success of the IPO and/or the separate private placement, the Company and each Series A Lead agree to negotiate in good faith to the extent reasonably necessary to prevent such material detriment (including, without limitation, by discussing a reasonable reduction to the aggregate allocation hereunder). With respect to the Fidelity Investors, (i) for purposes of the rights under this provision, shares shall be aggregated among the Employee Share Option PlanFidelity Investors and (ii) the foregoing rights may be exercised by Fidelity on behalf of funds and accounts advised or sub-advised by Fidelity (including the Fidelity Investors). With respect to Avidity, for purposes of the rights under this provision, shares shall be aggregated among the entities comprising Avidity. With respect to 5AM Ventures, for purposes of the rights under this provision, shares shall be aggregated among the entities comprising 5AM Ventures.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Magenta Therapeutics, Inc.)
Right of First Offer. Subject (a) Any Management Stockholder wishing to Transfer Equity Securities (other than a Transfer in accordance with Section 3.01(b)) must inform the Investor of such intent in writing specifying the number of Equity Securities (the “Offered Shares”) it intends to Transfer.
(b) By delivering such written notice of intent, the Management Stockholder represents and warrants to the terms and conditions of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among that (i) itself, the Management Stockholder has (ii) its Affiliates and (iii) its beneficial interest holders, will have on the closing date of any purchase of such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of Offered Shares by the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (xpursuant to this Section 3.02) is not a Competitorfull right, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 title and 8.1 hereof), interest in and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New SecuritiesOffered Shares, (ii) the number Management Stockholder has (and will have on the closing date of any purchase of such New Securities Offered Shares by the Investor pursuant to be offeredthis Section 3.02) all the necessary power and authority and has taken all necessary action to sell such Offered Shares as contemplated by this Section 3.02, and (iii) the price Offered Shares are (and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty (30) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and will be on the terms specified in the Offer Notice, up to that portion closing date of any 8 CPAM: 10212011.2 purchase of such New Securities which equals the proportion that the Ordinary Offered Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b3.02) shall occur within free and clear of any and all Liens other than those arising as a result of or under the later terms of ninety (90) days this Agreement and other than Permitted Liens, which shall, as of the date that the Offer Notice is given and the closing date of initial sale any purchase of New Securities such Offered Shares by the Investor pursuant to this Section 8.1(c)3.02 be released by the holder thereof.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b)Upon receipt of such written notice of intent, the Company mayInvestor shall have the right to offer to purchase all (but not less than all) of the Offered Shares by delivering a written notice (a “ROFO Offer”) to the Management Stockholder stating that it offers to purchase such Offered Shares on the terms and conditions (including price) specified therein. Any ROFO Offer so delivered on or before the date that is 15 Business Days after receipt by the Investor of such written notice of intent (the “ROFO Notice Period”) shall be binding upon delivery and irrevocable by the Investor.
(d) Upon receipt of any ROFO Offer, during the 90-day period following Management Stockholder shall have the right to accept the offer set forth therein by delivering a written acceptance (the “ROFO Acceptance”) of the ROFO Offer to the Investor on or before the date that is 15 Business Days after receipt by the Management Stockholder of the ROFO Offer (the “ROFO Acceptance Period”). Any ROFO Acceptance so delivered on or before the expiration of the periods provided ROFO Acceptance Period shall constitute a binding agreement of the Management Stockholder to sell and the Investor to purchase, the Offered Shares on the terms and conditions set forth in the ROFO Offer. Any such sale shall be consummated on the 5th Business Day after receipt by the Investor of the ROFO Acceptance, or as otherwise agreed between the Management Stockholder and Investor.
(e) If the Investor does not deliver a ROFO Offer during the ROFO Notice Period it shall be deemed to have waived all of its rights to purchase the Offered Shares under this Section 8.1(b)3.02, offer and sell the remaining unsubscribed portion Management Stockholder shall thereafter be free to market and Transfer on or before the date that is 60 Business Days after the expiration of such New Securities ROFO Notice Period the Offered Shares, subject to the provisions of Section 3.03, to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer NoticePerson. If the Company Management Stockholder does not enter into an agreement for so Transfer the sale Offered Shares on or before the date that is 60 Business Days after the expiration of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereofROFO Notice Period, the right rights provided hereunder shall be deemed to be revived and such New Securities the Offered Shares shall not be offered to any person unless first reoffered to the Investors Management Stockholder again complies with this Section 3.02.
(f) If the Investor does deliver a ROFO Offer in accordance with this Section 8.13.02, and the Management Stockholder does not deliver a ROFO Acceptance prior to the expiration of the ROFO Acceptance Period, the Management Stockholder may, during the 60 Business Day period following the expiration of the ROFO Acceptance Period, subject to the provisions of Section 3.03, market and Transfer all of the Offered Shares to any Person on terms and conditions no more favorable to such Person than those set forth in the ROFO Offer. If the Management Stockholder does not Transfer the Offered Shares within such period, the rights provided hereunder shall be deemed to be revived and the Offered Shares shall not be offered for Transfer to any Person unless the Management Stockholder again complies with this Section 3.02.
(dg) The right of first offer Each Management Stockholder participating in a sale contemplated by this Section 8.1 3.02 shall not take all actions as may be applicable reasonably necessary to consummate the sale contemplated by this Section 3.02 including, without limitation, entering into agreements and delivering certificates and instruments and consents as may be deemed necessary or appropriate.
(ih) Exempted Securities At the closing of any sale and purchase pursuant to this Section 3.02, the Management Stockholder shall deliver to the Investor a certificate or certificates representing the Offered Shares to be sold (as defined in the Company’s Constitutive Documentsif any), (ii) Ordinary Shares issued in an initial public offering accompanied by stock powers with signatures guaranteed and (iii) equity securities all necessary stock transfer taxes paid and stamps affixed, if necessary, against receipt of the Company issued under purchase price therefor from the Employee Share Option Plan.Investor by certified or official bank check or by wire transfer of immediately available funds. CPAM: 10212011.2
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Major Investor. Each A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, itself and (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”)Affiliates; provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Amended and Restated Voting Agreement (the “Voting Agreement”) and Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as a Major Investor under Sections 7.1Subsections 3.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such Major Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty sixty (3060) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (shares of Common Stock, options or convertible securities issued as defined in the Company’s Constitutive Documents), a dividend or distribution on Preferred Stock; (ii) Ordinary Shares shares of Common Stock, options or convertible securities issued in an initial public offering and by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock; (iii) equity securities shares of Common Stock or options issued to employees or directors of, or consultants or advisors to, the Company or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors of the Company; (iv) shares of Common Stock or convertible securities actually issued upon the exercise of options or shares of Common Stock actually issued upon the conversion or exchange of convertible securities, in each case provided such issuance is pursuant to the terms of such option or convertible security; (v) shares of Common Stock, options or convertible securities issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board of Directors of the Company; (vi) securities issued solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity approved by the Board of Directors of the Company; (vii) shares of Common Stock issued under in the Employee Share Option PlanIPO; or (viii) the issuance of shares of Series A Preferred Stock to Additional Purchasers pursuant to Subsection 1.3 of the Purchase Agreement.
(e) The right of first offer set forth in this Subsection 4.1 shall terminate with respect to any Major Investor who fails to purchase, in any transaction subject to this Subsection 4.1, all of such Major Investor’s pro rata amount of the New Securities allocated (or, if less than such Major Investor’s pro rata amount is offered by the Company, such lesser amount so offered) to such Major Investor pursuant to this Subsection 4.1. Following any such termination, such Investor shall no longer be deemed a “Major Investor” for any purpose of this Subsection 4.1.
(f) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Subsection 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage-ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date notice is given to the Major Investors.
Appears in 1 contract
Right of First Offer. Subject (a) If any of the Bridge Investors propose to transfer any equity interests in the Company (as determined by the Bridge Investors in their sole discretion, respectively) in an arm’s length transaction (other than transfers to Permitted Transferees, pursuant to an Initial Public Offering or pursuant to, or consequent upon, the exercise of a Drag-Along Right or a Tag-Along Right) (the “Proposed Transfer”), the BC Investors shall have a right of first offer (the “Right of First Offer”) to purchase all, but not less than all, of the equity interests in the Company proposed to be sold by such Bridge Investors; provided that (i) BC Investors must make an irrevocable and final offer (the “Timely BC Investors Offer”) within fifteen (15) Business Days of the Bridge Investors giving written notice to BC Investors of the Proposed Transfer on terms and conditions (including, without limitation, the purchase price and form of consideration and terms of payment) (the “Right of First Offer Notice”); (ii) the Bridge Investors shall have the right to consummate the Proposed Transfer if (x) BC Investors fail to make the Timely BC Investors Offer agreeing to purchase all of the equity interests of the Company proposed to be sold in the Proposed Transfer upon the terms and conditions in the Right of this Section 8.1 and applicable securities Laws, if the Company proposes to offer First Offer Notice or sell any New Securities, the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees BC Investors fail to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined consummate the transfer contemplated by the Board Timely BC Investors Offer upon the later of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), (A) twenty (20) Business Days after its acceptance by the Bridge Investors and (zB) agrees to purchase at least such number of New Securities as are allocable hereunder to three (3) Business Days after the Investor holding date on which all necessary or advisable regulatory approvals have been obtained for the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New SecuritiesProposed Transfer.
(b) By notification to For purposes of calculating the Company within thirty (30) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such noticeProposed Transfer, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that if any portion of the New Securities for which consideration is paid other than in cash, the Fair Market Value of any non-cash consideration shall be determined in accordance with the definition of Fair Market Value and the BC Investors were entitled to subscribe but that were not subscribed for by the Investors which is may deliver an amount of cash equal to the proportion that Fair Market Value of such non-cash consideration in consideration for the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale be purchased pursuant to this Section 8.1(b) shall occur within the later its Right of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)First Offer.
(c) If all New Securities referred to in This Section 3.06 shall automatically terminate on the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration ninth anniversary of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Closing.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
Appears in 1 contract
Samples: Shareholders Agreement (Intelsat Global Holdings S.A.)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 3.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each of the InvestorsHolders on a pro rata basis pursuant to Subsection 3.1(b) below. Each Investor The Holders shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor such Holder (“Investor Holder Beneficial Owners”); provided further, that each such Affiliate or Investor Holder Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and the First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investor and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securitiesagreement.
(a) The Company shall give notice (the “Offer Notice”) to each InvestorHolder, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor Holder may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Investor Holder (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such InvestorHolder) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities then outstanding). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor Holder that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising InvestorHolder”) of any other InvestorHolder’s failure to do likewise. During the 10-twenty (20) day period commencing after the Company has given such notice, each Fully Exercising Investor Holder may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors Holders were entitled to subscribe but that were not subscribed for by the Investors Holders which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor Holder bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors Holders who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(bSubsection 3.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 3.1 (c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 3.1(b), the Company may, during the 90six-day month period following the expiration of the periods provided in Section 8.1(bSubsection 3.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors Holders in accordance with this Section 8.1Subsection 3.1.
(d) The right of first offer in this Section 8.1 Subsection 3.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents)shares of Series A Preferred Stock, (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and the IPO, or (iii) any of the following securities:
(i) the issuance by the Company of any New Securities in connection with or pursuant to any equity securities incentive plan, arrangement, or agreement of the Company approved by the Board of Directors;
(ii) an issuance by the Company of any New Securities issued under as consideration in or to finance any business acquisition by the Employee Share Option PlanCompany, whether by merger, consolidation, purchase of assets or otherwise, that is approved by the Board of Directors;
(iii) an issuance by the Company of any New Securities to Persons with which the Company has entered into a new business relationship (or has amended an existing business relationship) that is approved by the Board of Directors;
(iv) an issuance by the Company of any New Equity Securities to a lender in connection with borrowings from a bank or other commercial lender or the amendment thereof; or
(v) the issuance by the Company of any New Securities in a merger, consolidation or conversion of the Company or upon any split, combination, dividend or other similar event in respect of the Membership Interests.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer the Investor’s pro rata portion (as determined in accordance with Subsection 4.1(b)) of such New Securities to the InvestorsInvestor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement, dated as an “Investor” under such agreement of June 22, 2018, among the Company, the Investor and the other parties named therein (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Party shall not be entitled to any rights as an Investor under Sections 7.1, 7.2 Subsections 3.1 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares Common Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each the Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities expected to be offered, and (iii) the anticipated price and material terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) calendar days after the Offer Notice is given, each the Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which that equals the proportion that the Ordinary Shares Common Stock then held by such the Investor (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held by such the Investor) bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the 90-day six (6) month period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of sell the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors Investor in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering IPO.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Subsection 4.1, the Company may elect to give notice to the Investor within thirty (30) calendar days after the issuance of New Securities. Such notice shall describe the type, price, and (iii) equity securities material terms of the New Securities. The Investor shall have twenty (20) calendar days from the date notice is given to elect to purchase up to the number of New Securities that would, if purchased by the Investor, maintain its percentage-ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities.
(f) For avoidance of doubt, the Company issued under may offer similar rights of first offer to its existing stockholders; provided that such rights of first offer do not adversely affect the Employee Share Option Planrights of the Investor in this Subsection 4.1.
Appears in 1 contract
Samples: Investor's Rights Agreement (Vallon Pharmaceuticals, Inc.)
Right of First Offer. (a) Subject to the terms and conditions of this limitations set forth in Section 8.1 and applicable securities Laws7.4(e), if if, following the Company Lock-Up Expiration Date, the Investor proposes to offer or sell any New Transfer Capital Securities, other than in a broadly distributed Public Offering, to a third-party Transferee that is not a Permitted Transferee, then the Company shall first offer such New Securities to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under give the Exchange Act, Company written notice of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such partyInvestor’s purchase of New Securities is otherwise consented intention to by make the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice Transfer (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, and (ii) not Transfer such Capital Securities other than in accordance with, and subject to the applicable provisions of, this Section 7.4. The Offer Notice shall include (A) a description of the number of such New Capital Securities proposed to be offeredTransferred (“Offered Securities”), and (iiiB) the price and terms(and, if anyapplicable, the Investor’s reasonable determination in good faith of the fair market value of any non-cash consideration) for which the Investor proposes to Transfer the applicable Capital Securities and (C) if applicable, any material terms and conditions upon which it proposes to offer such New Securitiesthe proposed Transfer would be made.
(b) By notification to the The Company within shall have an option for a period of thirty (30) days after from delivery of the Offer Notice is given, each Investor may to elect to purchase or otherwise acquire, all of the Offered Securities at the same price and on (or, if applicable, a cash purchase price equal to the terms specified fair market value of non-cash consideration as determined pursuant to Section 7.4(a)) as described in the Offer Notice. The Company may exercise such purchase option and, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor (including thereby, purchase all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Offered Securities then held by such Investor) bears to notifying the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the Investor in writing before expiration of such 30thirty (30)-day period that it wishes to purchase the Offered Securities. The Company may assign such purchase option in whole or in part to any Person; provided, that the Company may not assign such purchase option to an Investor Competitor until any rights of the Investor have terminated in accordance with the terms of Section 3.1(c) or Sections 3.2(a)(ii) and 3.2(c) (any permitted assignee of such right, a “ROFO Assignee”).
(c) The Company shall effect any purchase of the Offered Securities pursuant to Section 7.4(a) with payment to be paid up front in cash against delivery of the Capital Securities to be purchased at a place agreed upon between the Parties and at the time of the scheduled closing therefor, which shall be no later than forty-day periodfive (45) days after delivery of the Offer Notice (which may be extended by ninety (90) days to the extent necessary to obtain any required approvals or consents under applicable Law); provided, that if the aggregate price of the Offered Securities is in excess of one billion dollars ($1,000,000,000), the Company shall promptly notify each Investor have ninety (90) days after delivery of the Offer Notice to consummate the closing of such purchase to the extent necessary to obtain financing with respect thereto.
(d) To the extent that elects the Company (or any ROFO Assignee) has not exercised the right to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During Offered Securities within the 10-day time period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, specified in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) 7.4, the Investor shall occur within the later have a period of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following from the expiration of such right in which to sell, or enter into an agreement to sell, all but not less than all of the periods provided in Section 8.1(b)Offered Securities, offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less thanor for consideration at least equal to, and upon other terms no and conditions not materially more favorable favorable, in the aggregate, to the offeree than, Transferee than those specified in the Offer Notice. If In the Company event the Investor does not enter into an agreement for the consummate such sale of the New Offered Securities within such period, or if such agreement is not consummated within thirty ninety (3090) days from the date of entry into the execution thereofapplicable agreement (which may be extended by up to an additional ninety (90) days to the extent necessary to obtain any required approvals or consents under applicable Law), the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in under this Section 8.1 7.4 shall continue to be applicable to any subsequent sale of the Offered Securities by the Investor. Furthermore, the exercise or non-exercise of any rights of the Company (or any ROFO Assignee) under this Section 7.4 to purchase Capital Securities from the Investor shall not be applicable adversely affect the Company’s (or any ROFO Assignee’s) rights to make subsequent purchases from the Investor.
(e) This Section 7.4 shall not apply to (i) Exempted the Transfer of Capital Securities (as defined in pursuant to a Sale of the Company’s Constitutive Documents), Company or (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities the Transfer of the Company issued under the Employee Share Option PlanCapital Securities to a Permitted Transferee.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions of this Section 8.1 Subsection 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorseach Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, and (ii) its Affiliates and (iii) its beneficial interest holdersAffiliates, such as limited partnersprovided that, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner agrees (xa) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Fourth Amended and Restated Voting Agreement and Fifth Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof)agreement, and (zb) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals (i) the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held held, by such Investor) Investor bears to the total Ordinary Shares Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares Stock and any other Derivative Securities) (the “Pro Rata Share”) plus (ii) to the extent any New Securities then outstandingare not included in any Investor’s Pro Rata Share, each Investor that is a Holder of Series D Preferred Stock, an additional number of New Securities equal as nearly as possible to such Investor’s Pro Rata Share (it being the intention that Investors holding shares of Series D Preferred Stock be entitled, as nearly as possible, to 200% of their Pro Rata Share). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors (“Over Allotment Securities”) which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares; provided, however, that such Over Allotment Securities shall first be allocated to Investors holding shares of Series D Preferred Stock until such Investors shall have been given the opportunity to purchase 200% of their Pro Rata Share and thereafter to all Fully Exercising Investors. The closing of any sale pursuant to this Section 8.1(bSubsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(bSubsection 4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(bSubsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Subsection 4.1.
(d) The right of first offer in this Section 8.1 Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsRestated Certificate), ; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering the IPO; and (iii) equity securities the issuance of additional shares of Preferred Stock pursuant to the Purchase Agreement.
(e) Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of this Subsection 4.1, the Company may elect to give notice to the Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the Company issued under New Securities. Each Investor shall have twenty (20) days from the Employee Share Option Plandate notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Investor, maintain such Investor’s percentage-ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date notice is given to the Investors.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Sera Prognostics, Inc.)
Right of First Offer. Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). For purposes of this Section 8.1 2.4, Investor includes any general partners and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to the Investorsaffiliates of an Investor. Each An Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its partners and affiliates in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, among or securities convertible into or exercisable for any shares of, any class of its capital stock (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof"Shares"), and (z) agrees the Company shall first make an offering of such Shares to purchase at least such number of New Securities as are allocable hereunder to each Investor in accordance with the Investor holding the fewest number of Investor Shares and any other Derivative Securities.following provisions:
(a) The Company shall give deliver a notice by certified mail (the “Offer "Notice”") to each Investor, the Investors stating (i) its bona fide intention to offer such New SecuritiesShares, (ii) the number of such New Securities Shares to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New SecuritiesShares.
(b) By notification to the Company within thirty Within twenty (3020) calendar days after delivery of the Offer Notice is givenNotice, each the Investor may elect to purchase or otherwise acquireobtain, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities Shares which equals the proportion that the Ordinary Shares then held by such Investor (including all Ordinary Shares then number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities Stock then held held, by such Investor) Investor bears to the total Ordinary Shares number of shares of Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, and exercise of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase convertible or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(cexercisable securities).
(c) If all New Securities referred Shares which Investors are entitled to in the Offer Notice obtain pursuant to subsection 2.4(b) are not elected to be purchased or acquired obtained as provided in Section 8.1(b)subsection 2.4(b) hereof, the Company may, during the 9030-day period following the expiration of the periods period provided in Section 8.1(b)subsection 2.4(b) hereof, offer and sell the remaining unsubscribed portion of such New Securities Shares to any Person person or Persons persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities Shares within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities Shares shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1herewith.
(d) The right of first offer in this Section 8.1 2.4 shall not be applicable to the issuance or sale of (i) Exempted Securities (as defined in securities issued pursuant to the Company’s Constitutive Documents), exercise or conversion of exercisable or convertible securities; (ii) Ordinary Shares securities issued pursuant to the terms of any joint venture agreement or in an initial public offering acquisition of the business of any other corporation, or other business entity, by way of merger, reorganization, transfer of assets or consolidation (or any similar transaction) approved by the Board of Directors of the Company in good faith as being in the best interests of the Company and its shareholders; (iii) equity securities issued by the Company to a lender in connection with any bona fide arm's-length debt-financing transaction that is approved by the Board of Directors of the Company in good faith as being in the best interests of the Company and its shareholders, provided such borrowings do not have any equity features including warrants, options or other rights to purchase capital stock and are not convertible into capital stock of the Company; (iv) Common Stock issued under pursuant to any arrangement approved by the Employee Share Option Plan.Board of Directors to employees, officers and directors of, or consultants, advisors or other persons performing services for, the Company; (v) securities issued to vendors or customers or to other persons in similar commercial situations with the Company if such issuance is approved by the Board of Directors; (vi) securities issued by the Company to a lessor, guarantor or other person in connection with any bona fide arm's-length lease financing transaction that is approved by the Board of Directors of the Company in good faith as being in the best interests of the Company and its shareholders;
Appears in 1 contract
Samples: Series a Preferred Stock Purchase Agreement (Pemstar Inc)
Right of First Offer. Subject to the terms and conditions of this Section 8.1 4.1 and applicable securities Lawslaws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Major Investor and Key Holder, on a pro rata basis calculated as the Investorsnumber of shares of Class A Common Stock held (including all shares of Class A Common Stock issued, or issuable, upon conversion of the Preferred Stock). Each A Major Investor or Key Holder shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, ,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a CompetitorCompetitor or a person who is required to provide information under the federal Freedom of Information Act or similar foreign, state or local statute (a “FOIA Person”), unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor as reasonably determined by the Board of Directors or FOIA Person shall not be entitled to any rights as a Major Investor under Sections 7.13.1, 7.2 3.2 and 8.1 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Investor Shares Preferred Stock and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each InvestorMajor Investor or the Key Holder, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within thirty twenty (3020) days after the Offer Notice is given, each Major Investor or Key Holder may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares Common Stock then held by such Major Investor or Key Holder (including all Ordinary Shares shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held by such InvestorMajor Investor or Key Holder) bears to the total Ordinary Shares Common Stock of the Company then outstanding held by all the Major Investors or Key Holder (assuming full including all shares of Common Stock issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of all Series A the Preferred Shares Stock and any other Derivative Securities then outstandingheld by all the Major Investors or Key Holder). At the expiration of such 30-twenty (20) day period, the Company shall promptly notify each Major Investor or Key Holder that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s or Key Holder’s failure to do likewise. During the ten (10-) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Major Investors or Key Holder were entitled to subscribe but that were not subscribed for by the Major Investors or Key Holder which is equal to the proportion that the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b4.1(b), the Company may, during the ninety (90-) day period following the expiration of the periods provided in Section 8.1(b4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors or Key Holders in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive DocumentsCertificate of Incorporation), ; and (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option PlanIPO.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the The Company shall first offer such New Securities not issue, sell or exchange, or agree or obligate itself to the Investors. Each Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriateissue, among sell or exchange, or reserve or set aside for issuance, sale or exchange, (i) itselfany shares of its Common Stock, (ii) its Affiliates and any other equity securities of the Company, including, without limitation, shares of Preferred Stock, (iii) its beneficial interest holdersany option, such as limited partnerswarrant or other right to subscribe for, members purchase or otherwise acquire any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, equity securities of the Investor Company, or (iv) any debt securities convertible into capital stock of the Company (collectively, the “Investor Beneficial OwnersOffered Securities”); provided that , unless in each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by case the Board of Directors, (y) agrees to enter into Company shall have first complied with this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any rights under Sections 7.1, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) Article IV. The Company shall give notice (the “Offer Notice”) deliver to each InvestorInvestor a written notice of any proposed or intended issuance or sale of Offered Securities (an “Investor Offer”), stating which shall (i) its bona fide intention to offer such New identify and describe the Offered Securities, (ii) describe the price and other terms upon which they are to be issued or sold, and the number or amount of such New the Offered Securities to be offeredissued or sold, and (iii) identify the price persons or entities to which the Offered Securities are to be issued or sold (collectively, the “Proposed Transferee”) and terms, if any, upon which it proposes (iv) offer to offer issue and sell to such New Securities.
Investor (bA) By notification to the Company within thirty (30) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that a pro rata portion of such New the Offered Securities which equals (the proportion that “Investor Offered Securities”), determined by dividing the Ordinary Shares aggregate number of shares of Common Stock then held by such Investor (including giving effect to the conversion of all Ordinary Shares then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, shares of the Series A Preferred Shares and any other Derivative Securities Stock then held by such Investor) bears by the total number of shares of Common Stock issued and outstanding at such time (giving effect to the total Ordinary Shares conversion of all outstanding shares of Preferred Stock then held by all Investors) (the “Basic Amount”), and (B) any additional portion of the Company then outstanding (assuming full conversion and/or exercise, Investor Offered Securities as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company Investor shall promptly notify each Investor that elects to indicate it will purchase or acquire all should the shares available to it other Investors subscribe for less than their Basic Amount (eachthe “Undersubscription Amount”), at a “Fully Exercising Investor”) of any price and on such other Investor’s failure to do likewise. During the 10-day period commencing after terms as shall have been specified by the Company has given such noticein the Investor Offer, each Fully Exercising which Investor may, Offer by giving notice to the Company, elect to purchase or acquire, in addition to the number its terms shall remain open and irrevocable for a period of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Ordinary Shares issued and held, or issuable twenty (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Ordinary Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (9020) days of the date that the Offer Notice is given and from the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration receipt of the periods provided in Section 8.1(b), offer and sell Investor Offer by the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1Investors.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
Appears in 1 contract
Samples: Investor Rights Agreement (Coley Pharmaceutical Group, Inc.)
Right of First Offer. Subject to the terms and conditions of specified in this Section 8.1 4.1, and applicable securities Lawslaws, if in the event the Company proposes to offer or sell any New Securities, the Company shall first offer make an offering of such New Securities to each Stockholder in accordance with the following provisions of this Section 4.1. A Stockholder (other than Maven and the Strategic Investors. Each Investor ) shall be entitled to apportion assign the right of first offer hereby granted to it in such proportions its partners, members and Affiliates and other parties as it deems appropriate, among (i) itself, (ii) . Maven shall not assign its Affiliates rights pursuant to this Section 4 to any party unless such party is reasonably acceptable to the Board and (iii) in no event may Maven assign its beneficial interest holders, such as limited partners, members or rights under this Section 4 to any other Person having “beneficial ownership”, as such term party that is defined in Rule 13d-3 promulgated under the Exchange Act, a competitor of the Investor (“Investor Beneficial Owners”); provided Company. The Strategic Investors shall not assign their rights pursuant to this Section 4 to any party unless such party is reasonably acceptable to the Board and in no event may the Strategic Investors assign their rights under this Section 4 to any party that is a competitor of the Company, provided, however, that each such Affiliate or Strategic Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by the Board of Directors shall not be entitled to any assign its rights under Sections 7.1, 7.2 and 8.1 hereofthis Section 4 to any entity in which it holds greater than 50% of the voting interests in such entity (a “Strategic Investor Subsidiary”), and (z) agrees to purchase at least any entity in which such number Strategic Investor Subsidiary holds greater than 50% of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securitiesvoting interests in such entity.
(a) The Company shall give notice deliver a notice, in accordance with the provisions of Section 6.5 hereof, (the “Offer Notice”) to each Investor, of the Stockholders stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification to received by the Company Company, within thirty twenty (3020) calendar days after mailing of the Offer Notice is givenNotice, each Investor of the Stockholders may elect to purchase or otherwise acquireobtain, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that (i) the Ordinary Shares then held by such Investor (including all Ordinary Shares then number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares Stock (and any other Derivative Securities securities convertible into, or otherwise exercisable or exchangeable for, shares of Common Stock) then held held, by such Investor) Stockholder bears to (ii) the total Ordinary Shares number of shares of Common Stock of the Company issued and held, or issuable upon conversion of the Preferred Stock then outstanding held, by all stockholders of the Company (assuming full conversion and/or exercise, as applicable, excluding Maven if Maven’s right of all Series A Preferred Shares and any other Derivative Securities then outstandingfirst offer has been terminated pursuant to Section 4.2). At the expiration of such 30-day period, the The Company shall promptly notify promptly, in writing, inform each Investor Stockholder that elects to purchase or acquire all the shares available to it (each, a “Fully Fully-Exercising InvestorStockholder”) of any other InvestorStockholder’s failure to do likewise. During the ten (10-) day period commencing after the Company has given receipt of such noticeinformation, each Fully Fully-Exercising Investor may, by giving notice Stockholder shall be entitled to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to obtain that portion of the New Securities for which the Investors Stockholders were entitled to subscribe but that which were not subscribed for by the Investors Stockholders which is equal to the proportion that the Ordinary Shares number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Series A Preferred Shares and any other Derivative Securities Stock then held, by such Fully Fully-Exercising Investor Stockholder bears to the Ordinary Shares total number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities Stock then held, by all Fully Fully-Exercising Investors Stockholders who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired obtained as provided in Section 8.1(b)4.1(b) hereof, the Company may, during the ninety (90-) day period following the expiration of the periods period provided in Section 8.1(b)4.1(b) hereof, offer and sell the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any Person person or Persons persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors Stockholders in accordance with this Section 8.14.1.
(d) The right of first offer in this Section 8.1 4.1 shall not be applicable to (i) Exempted Securities (shares of Common Stock issued or deemed issued as defined in the Company’s Constitutive Documents), a dividend or distribution on Preferred Stock; (ii) Ordinary Shares shares of Common Stock issued in an initial public offering and or issuable by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock; (iii) equity securities up to 4,232,466 shares of Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), or such greater number approved by the Requisite Investors, issued to employees, officers, directors, consultants and advisors of the Company or any of its Subsidiaries, or such other persons approved by the Board, pursuant to the 2004 Stock Option and Incentive Plan of the Company (provided that any options for such shares that expire or terminate unexercised or any restricted stock repurchased by the Company at cost shall not be counted toward such maximum number unless and until such shares are regranted as new stock grants (or as new options) pursuant to the terms of any such plan, agreement or arrangement) (“Reserved Employee Shares”); (iv) shares of Common Stock issued upon conversion of shares of Preferred Stock; (v) shares of Common Stock issued in a Qualified Public Offering; (vi) shares of Common Stock (and/or options or warrants therefor), or shares of Preferred Stock (and/or options or warrants therefor) which are convertible into up to a maximum of 205,000 shares of Common Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations and other similar recapitalizations affecting the number of such shares issued and outstanding), issued or issuable to parties providing the Company with equipment leases, real property leases, loans, credit lines, guaranties of indebtedness, cash price reductions or similar financing, or issuable to parties entering into strategic agreements with the Company, in each case, under arrangements approved by the Employee Share Option PlanBoard (including the Series A Directors); and (vii) shares of Common Stock issued or issuable pursuant to the acquisition of another business entity by the Company by merger, purchase of substantially all of the assets or other reorganization or pursuant to a joint venture agreement, technology license agreement or strategic partnership, in each case, under arrangements approved by the Board (including the Series A Directors).
(e) In lieu of complying with the provisions of this Section 4.1, the Company may elect to (a) give notice to the Stockholders at least one day prior to the issuance of New Securities, such notice shall only be required to include a statement that an issuance of New Securities is expected to occur and (b) give a subsequent notice to the Stockholders within thirty (30) days after the issuance of New Securities, such notice shall describe the type, price and terms of the New Securities (a “Post-Offering Notice”). Each Stockholder shall have twenty (20) days from the date of receipt of such Post-Offering Notice to elect to purchase up to the number of New Securities that it would be entitled to purchase pursuant to Section 4.1(b) (calculated prior to giving effect to the issuance of such New Securities). The closing of such sale shall occur within sixty (60) days of the date of the Post-Offering Notice to the Stockholders.
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Right of First Offer. Subject 4.2.1 All Involuntary Transfers pursuant to Section 4.1 above shall be subject to this Section 4.2. The Stockholder who owns the Shares subject to the Involuntary Transfer (the "Offering Stockholder") shall be deemed, prior to the Involuntary Transfer, to have offered the Shares subject to the Involuntary Transfer (the "Offered Shares") to all Principal Stockholders who are then parties to this Agreement as provided below (the "Right of First Offer"). Each Principal Stockholder shall have the right to allocate the purchase amount among the members of his or her Principal Stockholder Group, provided however, that such Principal Stockholder shall act as the agent on behalf of the Principal Stockholder Group.
4.2.2 As soon as practicable, the Offering Stockholder shall give written notice (an "Offer Notice") of the proposed Involuntary Transfer to all Principal Stockholders who then are parties to this Agreement and to the Secretary of the Company setting forth, in reasonable detail, the facts and circumstances of such proposed Involuntary Transfer, the number of Offered Shares, the proposed date of consummation of such proposed Involuntary Transfer (if known), and any other material terms and conditions of this Section 8.1 and applicable securities Laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities proposed Transfer to the Investors. extent then known.
4.2.3 Each Investor shall be entitled Principal Stockholder who is then a party to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other Person having “beneficial ownership”, as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of the Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial Owner (x) is not a Competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement as an “Investor” under such agreement (provided that any Competitor as reasonably determined by shall then have the Board of Directors shall not be entitled to any rights under Sections 7.1irrevocable right, 7.2 and 8.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Investor holding the fewest number of Investor Shares and any other Derivative Securities.
(a) The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company exercisable within thirty (30) days after the Offer Notice is givengiven in accordance with the requirements of Section 4.2.2 hereof (the "Notice Period"), each Investor may elect to purchase all (but not part) of his, her or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Ordinary Shares then held by such Investor its Entitled Amount (including all Ordinary Shares then issuable (directly or indirectlyas determined below) upon conversion and/or exercise, as applicable, of the Series A Preferred Offered Shares and any other Derivative Securities then held by such Investor) bears to the total Ordinary Shares of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and any other Derivative Securities then outstanding). At the expiration of such 30-day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, at a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the 10-day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which the Investors were entitled to subscribe but that were not subscribed for by the Investors which is price per Share equal to the proportion that lesser of (i) the Ordinary Shares issued and heldprice proposed to be paid in any bankruptcy, creditor's or judicial sale, if then known, or issuable (directly or indirectlyii) upon conversion and/or exercise, the closing sale price per share of the Company's Class A Common Stock on the last trading day (as applicable, of Series A Preferred Shares and any other Derivative Securities then held, by such Fully Exercising Investor bears reported on the New York Stock Exchange) prior to the Ordinary Shares issued date of purchase multiplied by a factor of .50 (50%). Each Offering Stockholder and heldeach Purchasing Stockholder (as defined below) shall pay his, her or issuable its own commissions and advisory fees (directly or indirectlyincluding legal cost and expenses) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of in connection with any sale of Shares pursuant to this Section 8.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 8.1(c)4.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 8.1(b), the Company may, during the 90-day period following the expiration of the periods provided in Section 8.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 8.1.
(d) The right of first offer in this Section 8.1 shall not be applicable to (i) Exempted Securities (as defined in the Company’s Constitutive Documents), (ii) Ordinary Shares issued in an initial public offering and (iii) equity securities of the Company issued under the Employee Share Option Plan.
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Samples: Lock Up and Registration Rights Agreement (Nu Skin Enterprises Inc)
