Right of First Refusal on Future Financings. From the date hereof until one year after the Closing Date, upon any financing by the Company of its Common Stock or Common Stock Equivalents (a “Subsequent Financing”), each Investor shall have the right to participate in such Subsequent Financing as described herein. At least five (5) Business Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Investor a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Investor if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Upon the request of an Investor, and only upon a request by such Investor, for a Subsequent Financing Notice, the Company shall promptly, but no later than one Business Day after such request, deliver a Subsequent Financing Notice to such Investor. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto. Each Investor shall notify the Company by 6:30 p.m. (New York City time) on the fifth (5th) Business Day after their receipt of the Subsequent Financing Notice of its willingness to provide the Subsequent Financing on the terms described in the Subsequent Financing Notice, subject to completion of mutually acceptable documentation. If one or more Investors shall fail to so notify the Company of their willingness to participate in the Subsequent Financing, the Investors agreeing to participate in the Subsequent Financing (the “Participating Investors”) shall have the right to provide all of the Subsequent Financing. If one or more Investors fail to notify the Company of their willingness to provide all of the Subsequent Financing and the Participating Investors do not agree to provide all of the Subsequent Financing, the Company may effect the remaining portion of such Subsequent Financing on the terms and to the Persons set forth in the Subsequent Financing Notice; provided that the Company must provide the Investors with a second Subsequent Financing Notice, and the Investors will again have the right of first refusal set forth above in this Section 7.11, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within 60 Business Days after the date of the initial Subsequent Financing Notice with the Person identified in the Subsequent Financing Notice. In the event the Company receives responses to Subsequent Financing Notices from Investors seeking to purchase more than the financing sought by the Company in the Subsequent Financing such Investors shall have the right to purchase their Pro Rata Portion (as defined below) of the Common Stock or Common Stock Equivalents to be issued in such Subsequent Financing. “Pro Rata Portion” is the ratio of (x) the amount invested by such Investor pursuant to this Agreement (the “Subscription Amount”) and (y) the aggregate sum of all of the Subscription Amounts. Notwithstanding the foregoing, this Section 7.11 shall not apply in respect of the issuance of (a) shares of Common Stock or options to employees, consultants, officers or directors of the Company pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement and (c) securities to a strategic partner in a transaction, the primary purpose of which is not the raising of capital and (d) securities to a lender in connection with the provision of credit to the Company.
Appears in 1 contract
Right of First Refusal on Future Financings. From the date hereof until the one year after hundred eightieth (180th) day following the Closing Dateeffective date of the registration statement covering the resale of the Shares, the Warrant Shares and the Anti-Dilution Shares, if any, by the Investors, upon any financing by the Company of its Common Stock or Common Stock Equivalents (a “"Subsequent Financing”"), each Investor shall have the right to participate in up to 100% of such Subsequent Financing as described hereinFinancing. At least five (5) Business Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Investor a written notice of its intention to effect a Subsequent Financing (“"Pre-Notice”"), which Pre-Notice shall ask such Investor if it wants to review the details of such financing (such additional notice, a “"Subsequent Financing Notice”"). Upon the request of an Investor, and only upon a request by such Investor, for a Subsequent Financing Notice, the Company shall promptly, but no later than one Business Day after such request, deliver a Subsequent Financing Notice to such Investor. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto. Each Investor shall notify the Company by 6:30 p.m. (New York City time) on the fifth (5th) Business Day after their receipt of the Subsequent Financing Notice of its willingness to provide the Subsequent Financing on the terms described in the Subsequent Financing Notice, subject to completion of mutually acceptable documentation. If one or more Investors shall fail to so notify the Company of their willingness to participate in the Subsequent Financing, the Investors agreeing to participate in the Subsequent Financing (the “"Participating Investors”") shall have the right to provide all of the Subsequent Financing. If one or more Investors fail to notify the Company of their willingness to provide all of the Subsequent Financing and the Participating Investors do not agree to provide all of the Subsequent Financing, the Company may effect the remaining portion of such Subsequent Financing on the terms and to the Persons set forth in the Subsequent Financing Notice; provided that the Company must provide the Investors with a second Subsequent Financing Notice, and the Investors will again have the right of first refusal set forth above in this Section 7.117.9, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within 60 Business Days 30 calendar days after the date of the initial Subsequent Financing Notice with the Person identified in the Subsequent Financing Notice. In the event the Company receives responses to Subsequent Financing Notices from Investors seeking to purchase more than the financing sought by the Company in the Subsequent Financing such Investors shall have the right to purchase their Pro Rata Portion (as defined below) of the Common Stock or Common Stock Equivalents to be issued in such Subsequent Financing. “"Pro Rata Portion” " is the ratio of (x) the amount invested by such Investor pursuant to this Agreement (the “"Subscription Amount”") and (y) the aggregate sum of all of the Subscription Amounts. Notwithstanding the foregoing, this Section 7.11 7.9 shall not apply in respect of the issuance of (a) shares of Common Stock or options to employees, consultants, officers or directors of the Company pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement and Agreement, (c) securities shares of Common Stock and warrants to a strategic partner in a transactionpurchase Common Stock pursuant to the Qualified Financing, the primary purpose of which is not the raising of capital and (d) securities up to a lender 900,000 shares of Common Stock issuable in connection with the provision acquisition by the Company of credit shares of capital stock of Filco GmbH, a German corporation, and (e) up to 100,000 shares of Common Stock issuable to Fil Filipov in consideration of his agreeing to serve as a director of the CompanyCompany (collectively, "Excluded Issuances").
Appears in 1 contract
Samples: Purchase Agreement (Airtrax Inc)
Right of First Refusal on Future Financings. From the date hereof until one year after the Closing Date, upon any financing the issuance by the Company of its Common Stock or Common Stock Equivalents for cash (a “"Subsequent Financing”"), each Investor shall have the right to participate in such Subsequent Financing up to such portion as described hereinthe number of shares of Common Stock purchased or purchasable hereunder beneficially owned by such Investor (determined pursuant to Rule 13d-3) at the time bears to the total shares of Common Stock outstanding, plus any shares of Common Stock issuable to such Investor pursuant to Warrants held by such Investor at such time. At least five (5) Business Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Investor a written notice of its intention to effect a Subsequent Financing (“"Pre-Notice”"), which Pre-Notice shall ask such Investor if it wants to review the details of such financing (such additional notice, a “"Subsequent Financing Notice”"). Upon the request of an Investor, and only upon a request by such Investorrequest, for a Subsequent Financing Notice, the Company shall promptly, but no later than one Business Day after such request, deliver a Subsequent Financing Notice to such Investor. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto. Each Investor The Investors agreeing to participate in the Subsequent Financing (the "Participating Investors") shall notify the Company by 6:30 p.m. (New York City time) on the fifth (5th) Business Day after their receipt of the Subsequent Financing Notice of its their willingness to provide participate in the Subsequent Financing on the terms described in the Subsequent Financing Notice, subject to completion of mutually acceptable documentation. If one or more Investors shall fail to so notify the Company of their willingness to participate in the Subsequent Financing, the Investors agreeing to participate in the Subsequent Financing (the “Participating Investors”) shall have the right to provide all of the Subsequent Financing. If one or more Investors fail to notify the Company of their willingness to provide all of the Subsequent Financing and the Participating Investors do not agree to provide all of the such Subsequent Financing, the Company may effect the remaining portion of such Subsequent Financing with the Participating Investors on the terms and to the Persons with such other Person as set forth in the Subsequent Financing Notice; provided that the Company must provide the Investors with a second Subsequent Financing Notice, and the Investors each Investor will again have the right of first refusal set forth above in this Section 7.117.9, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within 60 Business Days after the date of the initial Subsequent Financing Notice with the Participating Investors and such other Person as identified in the Subsequent Financing Notice. In the event the Company receives responses to Subsequent Financing Notices from Investors seeking to purchase more than the financing sought by the Company in Each Investor may allocate their portion of the Subsequent Financing such among each Investors shall have the right to purchase respective affiliate entities as they determine in their Pro Rata Portion (as defined below) of the Common Stock or Common Stock Equivalents to be issued in such Subsequent Financing. “Pro Rata Portion” is the ratio of (x) the amount invested by such Investor pursuant to this Agreement (the “Subscription Amount”) and (y) the aggregate sum of all of the Subscription Amountssole discretion. Notwithstanding the foregoing, this Section 7.11 7.9 shall not apply in respect of the issuance of (a) shares of Common Stock or options to employees, consultants, officers or directors of the Company pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, purpose and (b) securities upon the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement and (c) securities to a strategic partner in a transaction, the primary purpose of which is not the raising of capital and (d) securities to a lender in connection with the provision of credit to the CompanyAgreement.
Appears in 1 contract
Samples: Purchase Agreement (Find SVP Inc)
Right of First Refusal on Future Financings. From the date hereof until one year after the Closing Date, upon any financing by the Company of its Common Stock or Common Stock Equivalents (a “"Subsequent Financing”"), each Investor Purchaser shall have the right to participate in up to 50% of such Subsequent Financing as described hereinFinancing. At least five (5) Business Days business days prior to the closing of the Subsequent Financing, the Company shall deliver to each Investor Purchaser a written notice of its intention to effect a Subsequent Financing (“"Pre-Notice”"), which Pre-Notice shall ask such Investor Purchaser if it wants to review the details of such financing (such additional notice, a “"Subsequent Financing Notice”"). Upon the request of an Investora Purchaser, and only upon a request by such InvestorPurchaser, for a Subsequent Financing Notice, the Company shall promptly, but no later than one Business Day business day after such request, deliver a Subsequent Financing Notice to such InvestorPurchaser. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto. Each Investor Purchaser shall notify the Company by 6:30 p.m. (New York City time) on the fifth (5th) Business Day business day after their receipt of the Subsequent Financing Notice of its willingness to provide the Subsequent Financing on the terms described in the Subsequent Financing Notice, subject to completion of mutually acceptable documentation. If one or more Investors Purchasers shall fail to so notify the Company of their willingness to participate in the Subsequent Financing, the Investors Purchasers agreeing to participate in the Subsequent Financing (the “"Participating Investors”Purchasers") shall have the right to provide all of the Subsequent Financing. If one or more Investors Purchasers fail to notify the Company of their willingness to provide all of the Subsequent Financing and the Participating Investors Purchasers do not agree to provide all of the Subsequent Financing, the Company may effect the remaining portion of such Subsequent Financing on the terms and to the Persons set forth in the Subsequent Financing Notice; provided that the Company must provide the Investors Purchasers with a second Subsequent Financing Notice, and the Investors Purchasers will again have the right of first refusal set forth above in this Section 7.114.7, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within 60 Business Days business days after the date of the initial Subsequent Financing Notice with the Person identified in the Subsequent Financing Notice. In the event the Company receives responses to Subsequent Financing Notices from Investors Purchasers seeking to purchase more than the financing sought by the Company in the Subsequent Financing such Investors Purchasers shall have the right to purchase their Pro Rata Portion (as defined below) of the Common Stock or Common Stock Equivalents to be issued in such Subsequent Financing. “"Pro Rata Portion” " is the ratio of (x) the amount invested by such Investor Purchaser pursuant to this Agreement (the “"Subscription Amount”") and (y) the aggregate sum of all of the Subscription Amounts. Notwithstanding the foregoing, this Section 7.11 4.7 shall not apply in respect of the issuance of (a) shares of Common Stock or options to employees, consultants, officers or directors of the Company pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement and (c) securities to a strategic partner in a transaction, the primary purpose of which is not the raising of capital and (d) securities to a lender in connection with the provision of credit to the Company. "Common Stock Equivalents" means any securities of the Company or its subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Miravant Medical Technologies)
Right of First Refusal on Future Financings. From the date hereof until one year after the Closing Date, upon any financing by the Company of its Common Stock or Common Stock Equivalents (a “"Subsequent Financing”"), each New Investor and the Soros Parties shall have the right to participate in such Subsequent Financing Xxxxncing as described provided herein, subject to their respective Modified Share Cap. At least five (5) Business Days prior to the closing of the Subsequent Financing, the Company shall deliver to each New Investor and the Soros Parties a written notice of its intention to effect a Subsequent Financing Subsequexx Xxnancing (“"Pre-Notice”"), which Pre-Notice shall ask such New Investor and such Soros Party if it wants to review the details of such financing (such additional sucx xxxitional notice, a “"Subsequent Financing Notice”"). Upon the request of an Investora New Investor or Soros Party, and only upon a request by such InvestorNew Investor or Soros Pxxxx, for a Subsequent Financing Notice, the Company shall promptlyprxxxxxy, but no later than one Business Day after such request, deliver a Subsequent Financing Notice to such InvestorNew Investor or Soros Party. The Subsequent Financing Notice shall describe in reasonable reasoxxxxx detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto. Each New Investor and Soros Party shall notify the Company by 6:30 p.m. (New York City timetimx) on xx or prior to the fifth (5th) Business Day after their receipt of the Subsequent Financing Notice of its willingness to provide the Subsequent Financing on the terms described in the Subsequent Financing Notice, subject to their respective Modified Share Cap and the completion of mutually acceptable documentation. If one or more New Investors or Soros Parties shall fail to so notify the Company of their willingness to willingnexx xx participate in the Subsequent Financing, the New Investors and the Soros Parties agreeing to participate in the Subsequent Financing (the “Participating txx "Xarticipating Investors”") shall have the right to provide all of the Subsequent Financing, to the extent not exceeding their respective Modified Share Cap. If one or more of the New Investors or the Soros Parties fail to notify the Company of their willingness to provide proxxxx all of the Subsequent Financing and the Participating Investors do not agree to provide all of the Subsequent Financing, the Company may effect the remaining portion of such Subsequent Financing on the terms and to the Persons set forth in the Subsequent Financing Notice; provided that the Company must provide the New Investors and the Soros Parties with a second Subsequent Financing Notice, and the Investors New Xxxxstors and the Soros Parties will again have the right of first refusal set forth above axxxx in this Section 7.116.12, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within 60 Business Days after the date of the initial Subsequent Financing Notice with the Person identified in the Subsequent Financing Notice. In the event the Company receives responses to Subsequent Financing Notices from the New Investors or the Soros Parties seeking to purchase more than the financing sought by the Company xxx Xompany in the Subsequent Financing Financing, such New Investors and Soros Parties shall have the right to purchase purchase, subject to their resxxxxxve Modified Share Cap, their Pro Rata Portion (as defined below) of the Common Stock or Common Stock Equivalents to be issued in such Subsequent Financing. “"Pro Rata Portion” " is the ratio of (x) the amount invested number of shares of Common Stock held by such New Investor pursuant to this Agreement or Soros Party as of the Closing Date (the “Subscription Amount”excluding shares of Common Stock xxxxrlying options, warrants or other convertible or exercisable securities) and (y) the aggregate sum total number of all shares of Common Stock held by the New Investors and the Soros Parties as of the Subscription AmountsClosing Date (excluding shares of Common Stoxx xxderlying options, warrants or other convertible or exercisable securities). Notwithstanding anything to the contrary in the foregoing and for the avoidance of doubt, in no event shall any New Investor or Soros Party be entitled to purchase in a Subsequent Financing an amoxxx xn excess of their respective Modified Share Cap. Notwithstanding the foregoing, this Section 7.11 6.12 shall not apply in respect of the issuance of (a) shares of Common Stock or options to employees, consultants, officers or directors of the Company pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purposepurpose (b) shares of Common Stock or options or warrants to consultants or other service providers of the Company in a transaction that is not for the purpose of providing financing to the Company, (bc) shares of Common Stock pursuant to an underwritten public offering by the Company, and (d) securities upon the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement and (c) securities to a strategic partner in a transaction, increase the primary purpose number of which is not shares of Common Stock issuable thereunder or to lower the raising of capital and (d) securities to a lender in connection with the provision of credit to the Companyexercise or conversion price thereof.
Appears in 1 contract
Right of First Refusal on Future Financings. From the date hereof until one year after the first anniversary of the Closing Date, upon any financing by the Company of its Common Stock or Common Stock Equivalents at an effective price per share of $2.70 or less (appropriately adjusted for any stock split, reverse stock split, stock dividend or other reclassification or combination of the Common Stock occurring after the date hereof), the primary purpose of which is the raising of capital (a “Subsequent Financing”), each Investor shall have the right to participate in such Subsequent Financing as described provided herein. At least five (5) Business Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Investor a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Investor if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Upon the request of an Investor, and only upon a request by such Investor, for a Subsequent Financing Notice, the Company shall promptly, but no later than one Business Day after such request, deliver a Subsequent Financing Notice to such Investor. Any Investor who elects to receive a Subsequent Financing Notice shall keep the contents thereof confidential until the consummation or the abandonment of the Subsequent Financing. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto. Each Investor shall notify the Company by 6:30 p.m. (New York City time) on the fifth (5th) Business Day after their receipt of the Subsequent Financing Notice of its willingness to provide the Subsequent Financing on the terms described in the Subsequent Financing Notice, subject to completion of mutually acceptable documentation. If one or more Investors shall fail to so notify the Company of their willingness to participate in the Subsequent Financing, the Investors agreeing to participate in the Subsequent Financing (the “Participating Investors”) shall have the right to provide all of the Subsequent Financing. If one or more Investors fail to notify the Company of their willingness to provide all of the Subsequent Financing and the Participating Investors do not agree to provide all of the Subsequent Financing, the Company may effect the remaining portion of such Subsequent Financing on substantially the same terms and to the Persons set forth in the Subsequent Financing Notice; provided that the Company must provide the Investors with a second Subsequent Financing Notice, and the Investors will again have the right of first refusal set forth above in this Section 7.117.10, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within 60 Business Days after the date of the initial Subsequent Financing Notice with the Person identified in the Subsequent Financing Notice. In the event the Company receives responses to Subsequent Financing Notices from Investors seeking to purchase more than the financing sought by the Company in the Subsequent Financing such Investors shall have the right to purchase their Pro Rata Portion (as defined below) of the Common Stock or Common Stock Equivalents to be issued in such Subsequent Financing. “Pro Rata Portion” is the ratio of (x) the amount invested by such Investor pursuant to this Agreement (the “Subscription Amount”) and (y) the aggregate sum of all of the Subscription Amounts. Notwithstanding the foregoing, this Section 7.11 7.10 shall not apply in respect of the issuance of (a) shares of Common Stock or options to employees, consultants, officers or directors of the Company pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, purpose and (b) securities upon the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement and (c) securities to a strategic partner in a transaction, increase the primary purpose number of which is not shares of Common Stock issuable thereunder or to lower the raising of capital and (d) securities to a lender in connection with the provision of credit to the Companyexercise or conversion price thereof.
Appears in 1 contract
Samples: Purchase Agreement (Terabeam, Inc.)
Right of First Refusal on Future Financings. From the date hereof until one year after the second anniversary of the Closing Date, upon any financing issuance and sale by the Company of its Common Stock or Common Stock Equivalents for cash (a “"Subsequent Financing”"), each Investor investing $250,000 or more pursuant to this Agreement (each, a "Qualifying Investor") shall have the right to participate in such Subsequent Financing as described provided herein. At least five (5) Business Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Qualifying Investor a written notice of its intention to effect a Subsequent Financing (“"Pre-Notice”"), which Pre-Notice shall ask such Qualifying Investor if it wants to review the details of such financing (such additional notice, a “"Subsequent Financing Notice”"). Upon the request of an a Qualifying Investor, and only upon a request by such Qualifying Investor, for a Subsequent Financing Notice, the Company shall promptly, but no later than one Business Day after such request, deliver a Subsequent Financing Notice to such Qualifying Investor. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto. Each Qualifying Investor shall notify the Company by 6:30 p.m. (New York City time) on the fifth (5th) Business Day after their receipt of the Subsequent Financing Notice of its willingness to provide the Subsequent Financing on the terms described in the Subsequent Financing Notice, subject to completion of mutually acceptable documentation. If one or more Qualifying Investors shall fail to so notify the Company of their willingness to participate in the Subsequent Financing, the Qualifying Investors agreeing to participate in the Subsequent Financing (the “"Participating Investors”") shall have the right to provide all of the Subsequent Financing. If one or more Qualifying Investors fail to notify the Company of their willingness to provide all of the Subsequent Financing and the Participating Investors do not agree to provide all of the Subsequent Financing, the Company may effect the remaining portion of such Subsequent Financing on the terms and to the Persons set forth in the Subsequent Financing Notice; provided that the Company must provide the Qualifying Investors with a second Subsequent Financing Notice, and the Qualifying Investors will again have the right of first refusal set forth above in this Section 7.117.12, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within 60 Business Days after the date of the initial Subsequent Financing Notice with the Person identified in the Subsequent Financing Notice. In the event the Company receives responses to Subsequent Financing Notices from Qualifying Investors seeking to purchase more than the financing sought by the Company in the Subsequent Financing such Qualifying Investors shall have the right to purchase their Pro Rata Portion (as defined below) of the Common Stock or Common Stock Equivalents to be issued in such Subsequent Financing. “"Pro Rata Portion” " is the ratio of (x) the amount invested by such Qualifying Investor pursuant to this Agreement (the “"Subscription Amount”") and (y) the aggregate sum of all of the Subscription AmountsAmounts of all Qualifying Investors wishing to provide a portion of the Subsequent Financing. Notwithstanding the foregoing, this Section 7.11 7.12 shall not apply in respect of the issuance of (a) shares of Common Stock or options to employees, consultants, officers or directors of the Company pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, purpose and (b) securities upon the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement and (c) securities to a strategic partner in a transaction, increase the primary purpose number of which is not shares of Common Stock issuable thereunder or to lower the raising of capital and (d) securities to a lender in connection with the provision of credit to the Companyexercise or conversion price thereof.
Appears in 1 contract
Samples: Purchase Agreement (Caprius Inc)
Right of First Refusal on Future Financings. From Except as set forth on Schedule 7.10, from the date hereof until one (1) year after the Closing Date, upon any financing by the Company of its Common Stock or Common Stock Equivalents (a “Subsequent Financing”), each Investor shall have the right to participate in such Subsequent Financing as described provided herein. At least five (5) Business Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Investor a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Investor if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Upon the request of an Investor, and only upon a request by such Investor, for a Subsequent Financing Notice, the Company shall promptly, but no later than one Business Day after such request, deliver a Subsequent Financing Notice to such Investor. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person Person(s) with whom such Subsequent Financing is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto. Each Investor shall notify the Company by 6:30 p.m. (New York City Palo Alto time) on the fifth (5th) Business Day after their receipt of the Subsequent Financing Notice of its willingness to provide the Subsequent Financing on the terms described in the Subsequent Financing Notice, subject to completion of mutually acceptable documentation. If one or more Investors shall fail to so notify the Company of their willingness to participate in the Subsequent Financing, the Investors agreeing to participate in the Subsequent Financing (the “Participating Investors”) shall have the right to provide all of the Subsequent Financing. If one or more Investors fail to notify the Company of their willingness to provide all of the Subsequent Financing and the Participating Investors do not agree to provide all of the Subsequent Financing, the Company may effect the remaining portion of such Subsequent Financing on the terms and to the Persons set forth in the Subsequent Financing Notice; provided that the Company must provide the Investors with a second Subsequent Financing Notice, and the Investors will again have the right of first refusal set forth above in this Section 7.11, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within 60 Business Days after the date of the initial Subsequent Financing Notice with the Person identified in the Subsequent Financing Notice. In the event the Company receives responses to Subsequent Financing Notices from Investors seeking to purchase more than the financing sought by the Company in the Subsequent Financing such Investors shall have the right to purchase their Pro Rata Portion (as defined below) of the Common Stock or Common Stock Equivalents to be issued in such Subsequent Financing. “Pro Rata Portion” is the ratio of (x) the amount invested by such Investor pursuant to this Agreement (the “Subscription Amount”) and (y) the aggregate sum of all of the Subscription Amounts. Notwithstanding the foregoing, this Section 7.11 shall not apply in respect of the issuance of (a) shares of Common Stock or options to employees, consultants, officers or directors of the Company pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement and (c) securities to a strategic partner in a transaction, the primary purpose of which is not the raising of capital and (d) securities to a lender in connection with the provision of credit to the Company.Subsequent
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Right of First Refusal on Future Financings. From the date hereof until one year after the 18-month anniversary of the Closing Date, upon any financing by the Company of its Common Stock or Common Stock Equivalents (a “Subsequent Financing”), each Investor shall have the right to participate in such Subsequent Financing as described provided herein. At least five (5) Business Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Investor a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Investor if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Upon the request of an Investor, and only upon a request by such Investor, for a Subsequent Financing Notice, the Company shall promptly, but no later than one Business Day after such request, deliver a Subsequent Financing Notice to such Investor. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto. Each Investor shall notify the Company by 6:30 p.m. (New York City time) on the fifth (5th) Business Day after their receipt of the Subsequent Financing Notice of its willingness to provide the Subsequent Financing on the terms described in the Subsequent Financing Notice, subject to completion of mutually acceptable documentation. If one or more Investors shall fail to so notify the Company of their willingness to participate in the Subsequent Financing, the Investors agreeing to participate in the Subsequent Financing (the “Participating Investors”) shall have the right to provide all of the Subsequent Financing. If one or more Investors fail to notify the Company of their willingness to provide all of the Subsequent Financing and the Participating Investors do not agree to provide all of the Subsequent Financing, the Company may effect the remaining portion of such Subsequent Financing on the terms and to the Persons set forth in the Subsequent Financing Notice; provided that the Company must provide the Investors with a second Subsequent Financing Notice, and the Investors will again have the right of first refusal set forth above in this Section 7.117.6, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within 60 Business Days after the date of the initial Subsequent Financing Notice with the Person identified in the Subsequent Financing Notice. In the event the Company receives responses to Subsequent Financing Notices from Investors seeking to purchase more than the financing sought by the Company in the Subsequent Financing such Investors shall have the right to purchase their Pro Rata Portion (as defined below) of the Common Stock or Common Stock Equivalents to be issued in such Subsequent Financing. “Pro Rata Portion” is the ratio of (x) the amount invested by such Investor pursuant to this Agreement (the “Subscription Amount”) and (y) the aggregate sum of all of the Subscription Amounts. Notwithstanding the foregoing, this Section 7.11 7.6 shall not apply in respect of the issuance of (a) shares of Common Stock or options to employees, consultants, officers or directors of the Company pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, purpose and (b) securities upon the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement and (c) securities to a strategic partner in a transaction, increase the primary purpose number of which is not shares of Common Stock issuable thereunder or to lower the raising of capital and (d) securities to a lender in connection with the provision of credit to the Companyexercise or conversion price thereof.
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