Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day after the Underlying Shares Registration Statement is first declared effective by the Commission, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof, and (iii) shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms thereof, unless (A) the Company delivers to each Purchaser a written notice (the "Subsequent Placement Notice") of its intention effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Samples: Securities Purchase Agreement (Cybershop International Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities (including the issuance of any debt or a other instrument is at any time over life thereof convertible into or exchangeable for Common Stock or any other transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent PlacementSUBSEQUENT PLACEMENT") until the 180th day for a period of 180 days after the later to occur of the Effectiveness Date (as defined in the Registration Rights Agreement) and the date that the Commission first declares effective an Underlying Shares Registration Statement is first declared effective by the CommissionStatement, except (i) the granting of options or warrants to employees, consultants, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants (including the Class B Warrants (as defined herein)) and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent only if such security is disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereofSCHEDULE 2.1(C), and (iii) shares of Common Stock or Common Stock Equivalents (as defined in the Debentures) permitted to be issued without giving rise to an Event of Default under Sections 3(a)(xii) or 3(a)(xiii)(a) of the Debentures, and (iv) shares of Common Stock issuable upon conversion of Debentures, as payment of interest thereon and upon exercise of the Warrants in accordance with the terms thereofDebentures or the Warrants, respectively, unless (A) the Company delivers to each Purchaser the Purchasers a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser the Purchasers shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10th) Trading Day after its their receipt of the Subsequent Placement Notice of its their willingness to cause such Purchaser the Purchasers to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; providedPROVIDED, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights If the Purchasers shall indicate a willingness to provide financing in excess of the amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro rata portion of the aggregate principal amount of Debentures purchased by the Purchasers under this Section Agreement, but the Company shall apply not be required to each accept financing from the Purchasers in an amount in excess of the amount set forth in the Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participationNotice.
Appears in 1 contract
Samples: Convertible Debenture Purchase Agreement (Premier Laser Systems Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day after the Underlying Shares Registration Statement is first declared effective by the Commission, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof, and (iii) shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms thereof, unless (A) the Company delivers to each Purchaser a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or a transaction intended to be exempt securities of any of its Affiliates that are exchangeable or not subject to registration under convertible (directly or indirectly) for shares of Common Stock, including the Securities Act issuance of any debt or other instrument at any time over the life thereof convertible into or exchangeable for Common Stock (collectively, a "Subsequent PlacementSUBSEQUENT PLACEMENT") until the expiration of the 180th day after the Effective Date, provided, that such 180 day period shall be extended for the number of Trading Days during such period (A) in which trading in the Common Stock is suspended by any securities exchange or market or quotation system on which the Common Stock is then listed, or (B) during which the Underlying Shares Registration Statement is first declared effective not effective, or (C) during which the prospectus included in the Underlying Shares Registration Statement may not be used by the Commission, except (i) holders thereof for the granting resale of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof, and (iii) shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms thereofUnderlying Shares, unless (A) the Company delivers to each Purchaser of the Purchasers a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 6:30 p.m. (New York City time) on the fifth (5th) tenth Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to EXHIBIT 10(A)-14. provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) 30 Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights If the Purchasers shall indicate a willingness to provide financing in excess of the amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro-rata portion of the aggregate number of Shares purchased by such Purchaser under this Agreement, but the Company shall not be required to accept financing from the Purchasers under in an amount in excess of the amount set forth in the Subsequent Placement Notice. The right of first refusal set forth in this Section shall not apply to each Subsequent Placement contemplated (i) the granting of options or warrants to employees, officers, consultants and directors, and the issuance of shares upon exercise of options and warrants granted, under any stock option plan or employee stock purchase plan heretofore or hereinafter duly adopted by the Company or such SubsidiaryCompany, regardless (ii) shares of Common Stock issuable upon exercise of any prior waivers currently outstanding warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case disclosed in SCHEDULE 2.1(C), but not with respect to any amendment or non-participationmodification thereto, and (iii) shares of Common Stock issuable upon exercise of the Warrants in accordance with their respective terms.
Appears in 1 contract
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or any instrument in a transaction placement intended to be exempt or not subject to from the registration under requirements of the Securities Act (a "Subsequent Placement") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the Commissionany Closing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants or rights and upon conversion of any currently outstanding convertible securities of the Company, preferred stock in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable issued upon conversion of Debentures or as payment of interest thereon or upon exercise of the Warrants in accordance with the terms thereofWarrants, unless (A) the Company delivers to each Purchaser a written notice (the "Subsequent Placement Notice") of its intention effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effectedaffected (if known to the Company), and attached to which shall be a term sheet or similar document relating thereto and (B) such no Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth fifteenth (5th15th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers no Purchaser shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice (if such Persons are set forth in the Subsequent Placement Notice) ; provided, that the Company shall provide the Purchasers each Purchaser with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) (if any) identified in the Subsequent Placement Notice. The rights If the Purchasers shall indicate a willingness to provide financing in excess of the amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro rata portion of the aggregate principal amount of Debentures purchased by the Purchasers under this Section Agreement, but the Company shall apply not be required to each accept financing from the Purchasers in an amount in excess of the amount set forth in the Subsequent Placement contemplated Notice. Notwithstanding the foregoing, the Company need not disclose in a Subsequent Placement Notice the name of the Person with whom a Subsequent Placement shall be effected in the event the Person has required that the Company enter into a written confidentiality agreement with such Person which prohibits the disclosure of such Person's name to the Purchaser, in which event (i) the Company shall use its reasonable best efforts to obtain such other Person's consent to the disclosure of its name to the Purchase and (ii) in the event the Person will not consent to such disclosure, the Company shall provide a certificate to the Purchasers, executed by the Chief Executive Officer and the Chief Financial Officer of the Company or certifying that the Person with whom the Subsequent Placement shall be effected has required the Company to enter into a confidentiality agreement with such SubsidiaryPerson which prohibits the disclosure of such Person's name to the Purchasers, regardless of any prior waivers or non-participationand that the Company has used its reasonable best efforts to have obtain such Person consent to such disclosure.
Appears in 1 contract
Samples: Convertible Debenture Purchase Agreement (Possis Medical Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or in a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent PlacementSUBSEQUENT PLACEMENT") until the 180th day for a period of 180 days after the Underlying effective date of the registration statement covering the underlying Shares Registration Statement is first declared effective by issued pursuant to the CommissionTranche 1 Closing (the "UNDERLYING SECURITIES REGISTRATION STATEMENT"), except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule SCHEDULE 2.1(c), (iii) but not with respect to any amendment or modification thereofthe Securities, and (iiiiv) shares of Common Stock issuable upon exercise of equity or equity-equivalent securities issued in connection with strategic transactions involving the Warrants in accordance with the terms thereofCompany and other entities, including, without limitation, joint ventures, marketing or distribution agreement, technology transfer or development arrangements unless (A) the Company delivers to each Purchaser the Purchasers a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such no Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth (5th) Trading Business Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee Designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on terms no less favorable to the same Company than those terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their its intention to enter into provide such negotiations financing within such time periodperiod or shall fail to provide such financing within thirty (30) Business Days after notifying the Company of its intention to provide such financing (the "PURCHASERS RIGHT EXPIRATION DATE"), the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; providedPROVIDED, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Business Days after (x) the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by notify the Company of their unwillingness to provide such financing or such Subsidiary(y) the Purchasers Right Expiration Date, regardless of any prior waivers or non-participationas the case may be.
Appears in 1 contract
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the PurchasersKA, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent PlacementSUBSEQUENT PLACEMENT") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable upon conversion of the Shares and upon exercise of the Warrants in accordance with the terms thereofCertificate of Designation or the Warrants, respectively, unless (A) the Company delivers to each Purchaser KA a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser KA shall not have notified the Company by 5:30 5:00 p.m. (New York City Minnetonka, Minnesota time) on the fifth tenth (5th10th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser KA to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers KA shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; providedPROVIDED, that the Company shall provide the Purchasers KA with a second Subsequent Placement Notice, and the Purchasers KA shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty forty (3040) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Tro Learning Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company ------------------------------------------------ shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity equity, debt or equity-equivalent securities or a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until for a period of 180 days -------------------- after the 180th day after date that the Underlying Shares Registration Statement is first declared effective by the Commission, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable upon conversion of --------------- Preferred Stock and upon exercise of the Warrants in accordance with the terms thereofCertificate of Determination or the Warrants, respectively, unless (A) the Company delivers to each Purchaser the Purchasers a written notice (the "Subsequent Placement -------------------- Notice") of its intention to effect such Subsequent Placement, which Subsequent ------ Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser the Purchasers shall not have notified the Company by 5:30 6:30 p.m. (New York City time) on the fifth (5th5/th/) Trading Day after its their receipt of the Subsequent Placement Notice of its their willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same conversion, reset and pricing terms (including original issue discount, if any) and substantially on such other terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent -------- Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a)Section, if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the conversion, reset and pricing terms (including original issue discount, if any) and substantially on such other terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights If the Purchasers shall indicate a willingness to provide financing in excess of the Purchasers amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro rata portion of the aggregate number of Shares purchased by such Purchaser under this Section Agreement, but the Company shall apply not be required to each accept financing from the Purchasers in an amount less than or in excess of the amount set forth in the Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participationNotice.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Softlink Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the PurchasersPurchasers (which shall not be unreasonably withheld), offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or in a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th 310th day after the Underlying Shares Registration Statement is first declared effective by Closing Date (the Commission"Threshold Date"), except (i) the granting of options or warrants to employees, officers officers, directors, consultants and directorsother service providers , and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the CompanyCompany and , in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof, and convertible securities issued in compliance with this Section 3.9(a), (iii) shares of Common Stock issuable upon conversion of the Debentures and exercise of the Warrants in accordance with the terms thereof, (iv) shares of Common Stock issuable in connection with a Strategic Transaction (as defined below), (v) an underwritten public offering of the Common Stock resulting in net proceeds to the Company in excess of $10,000,000, (vi) warrants issuable to Brighton Capital, Ltd. in connection with this transaction and the issuance of shares upon exercise thereof, (vii) warrants to be issued by the Company to Kingsbridge Capital Limited to purchase 25,000 shares of Common Stock and the issuance of shares upon exercise thereof, (viii) the granting of warrants to purchase up to 10,000 shares of Common Stock in connection with equipment leasing or other debt financing transactions and (ix) a single issuance of shares of Common Stock, at a discount of up to 10% of the market price of the Common Stock at the time of such issuance and, in connection therewith, the issuance of warrants to purchase Common Stock at a price no less than 10% of the market price of the Common Stock at the time of such issuance and the issuance of shares of Common Stock or warrants to purchase Common Stock as payment of any placement fee, unless (A) the Company delivers to each Purchaser a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 p.m. (New York City time) on the fifth second (5th2nd) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason substantially on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.set
Appears in 1 contract
Samples: Convertible Debenture Purchase Agreement (Neotherapeutics Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or a transaction (a) intended to be exempt or not subject to registration under the Securities Act and (b) that permits the holder thereof to acquire (whether by conversion, reset, original purchase price, exchange or otherwise) Common Stock at any time over the life of the security or investment at a price that is less than the market price of the Common Stock at the time of issuance of such security or investment (a "Subsequent Placement") until the 180th day after the Underlying Shares Registration Statement is first declared effective by the Commission, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof, and (iii) shares of Common Stock issued as payment of the purchase price in connection with a Strategic Transaction (as defined below) and (iv) shares of Common Stock issuable upon conversion of the Notes and upon exercise of the Warrants in accordance with the terms thereofNotes and the Warrants, respectively, unless (A) the Company delivers to each Purchaser a written notice (the "Subsequent Placement Notice") of its intention effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall indicate a willingness to provide financing in excess of the amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro rata portion of the aggregate number of Shares purchased by such Purchaser under this Agreement, but the Company shall not be required to accept financing from the Purchasers in an amount less than or in excess of the amount set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (Franklin Telecommunications Corp)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities including the issuance of any debt or a other instrument at any time over life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until for a period of 180 Trading Days after the 180th day after date the Underlying Shares Registration Statement is first declared effective by the Commission, provided, that such 180 Trading Day period shall be extended for the number of Trading Days during such period (A) in which trading in the Common Stock is suspended by the NASDAQ or such market or quotation system on which the Common Stock is then listed, or (B) during which the Underlying Shares Registration Statement is not effective, or (C) during which the prospectus included in the Underlying Shares Registration Statement may not be used by the holders thereof for the resale of Underlying Shares, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable upon conversion of Shares and upon exercise of the Warrants in accordance with the terms thereofCertificate of Designation or the Warrants, (iv) a bona fide underwritten offering of Common Stock through a nationally recognized investment bank (a line of equity offering or similar type of financing shall not be deemed a bona fide underwritten offering of Common Stock) with proceeds in excess of $7,500,000, respectively, and (v) shares of Common Stock issued as payment of the purchase price in connection with a Strategic Transaction (as defined below), unless (A) the Company delivers to each Purchaser the Purchasers a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser the Purchasers shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10th) Trading Day after its their receipt of the Subsequent Placement Notice of its their willingness to cause such Purchaser the Purchasers to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.such
Appears in 1 contract
Samples: Registration Rights Agreement (New Frontier Media Inc /Co/)
Right of First Refusal; Subsequent Registrations. (a) The ------------------------------------------------ Company shall not, directly or indirectly, without the prior written consent of the PurchasersPurchaser, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day for a period of 180 days -------------------- after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, consultants, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) options or warrants to be granted to BankBoston N.A., Brighton Capital Ltd. and S3 Incorporated as referenced in the Transaction Documents or options or warrants to be issued to any bona fide joint venture or similar corporate partner, (iii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iiiiv) shares of Common Stock issuable upon --------------- conversion of Preferred Stock and as payment of dividends thereon and upon exercise of the Warrants Warrant in accordance with the terms thereofCertificate of Designation or the Warrant, and (v) shares of Common Stock issuable in any primary public offering of the Company (other than offerings resulting from "equity lines of credit") respectively, unless (A) the Company delivers to each the Purchaser a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent --------------------------- Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such the Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10/th/) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such the Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers Purchaser shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the -------- Company shall provide the Purchasers Purchaser with a second Subsequent Placement Notice, and the Purchasers Purchaser shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights Notwithstanding anything to the contrary contained herein, the right of first refusal granted hereunder shall be junior and subject to the right of first refusal held by the holders of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by Company's Series A Convertible Preferred Stock, as such rights exist on the Company or such Subsidiary, regardless of any prior waivers or non-participationClosing Date.
Appears in 1 contract
Samples: Registration Rights Agreement (Number Nine Visual Technology Corp)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the PurchasersPurchasers (which shall not be unreasonably withheld), offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or in a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day after the each Underlying Shares Registration Statement is first declared effective by the Commission, except (i) the granting of options or warrants to employees, officers officers, directors, consultants and directorsother service providers , and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof, and (iii) shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms thereof, (iv) shares of Common Stock issuable in connection with a Strategic Transaction (as defined below), (v) an underwritten public offering of the Common Stock resulting in net proceeds to the Company in excess of $10,000,000, (vi) one or more fixed price private placements pursuant to which no registration rights will be permitted until the later of (1) the 30th day following the Second Vesting Date, or (2) the 180th day following the Closing Date, (vii) an offering of the Company's securities that occurs after the 30th Trading Day following the Second Vesting Date, (viii) warrants issuable to Brighton Capital, Ltd. in connection with this transaction and the issuance of shares upon exercise thereof, (ix) warrants to be issued by the Company to Kingsbridge Capital Limited to purchase 25,000 shares of Common Stock and the issuance of shares upon exercise thereof, and (x) the granting of warrants to purchase up to 10,000 shares of Common Stock in connection with equipment leasing or other debt financing transactions, unless (A) the Company delivers to each Purchaser a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 p.m. (New York City time) on the fifth second (5th2nd) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.again
Appears in 1 contract
Samples: Securities Purchase Agreement (Neotherapeutics Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities including the issuance of any debt or a other instrument at any time over the life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day after 120th Trading Day following the Effective Date provided, that such 120 Trading Day period shall be extended for the number of Trading Days during such period (A) in which trading in the Common Stock is suspended by the NASDAQ or such market or quotation system on which the Common Stock is then listed, or (B) during which the Underlying Shares Registration Statement is first declared effective not effective, or (C) during which the prospectus included in the Underlying Shares Registration Statement may not be used by the Commissionholders thereof for the resale of Underlying Shares, except (i) the granting of options or warrants to employees, officers and officers, directors, and the issuance or information technology consultants of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities or debt of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof, and (iii) shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms thereof and (iv) the granting of warrants to acquire up to an aggregate of 50,000 shares of Common Stock at a price per share of Common Stock equal to or greater than the market price of the Common Stock on the date of the issuance thereof, in connection with bona fide debt, credit or equipment financing transactions but shall not include transactions in which the Company is issuing warrants to an entity whose primary business is investing in securities, unless (A) the Company delivers to each Purchaser a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 6:30 p.m. (New York City time) on the fifth (5th) Trading 5th)Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. If the Purchasers shall indicate a willingness to provide financing in excess of the amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro-rata portion of the aggregate number of Shares purchased by such Purchaser under this Agreement, but the Company shall not be required to accept financing from the Purchasers in an amount in excess of the amount set forth in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Samples: Securities Purchase Agreement (Viisage Technology Inc)
Right of First Refusal; Subsequent Registrations. (a) The the Company shall not, directly or indirectly, without the prior written consent of the PurchasersEncore, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or any instrument that permits the holder thereof to acquire Common Stock at any time over the life of the security or investment at a transaction intended to be exempt price that is less than the market price of the Common Stock at the time of issuance of such security or not subject to registration under the Securities Act investment (a "Subsequent PlacementFinancing") until the 180th day for a period of 100 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, preferred stock in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof3.1(c), and (iii) shares of Common Stock issuable issued upon conversion of the Shares, as payment of dividends in respect thereof, or upon exercise of the Warrants in accordance with their respective terms, (iv) shares issued in connection with the terms thereofcapitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to each Purchaser Encore a written notice (the "Subsequent Placement Financing Notice") of its intention effect such Subsequent PlacementFinancing, which Subsequent Placement Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent PlacementFinancing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement Financing shall be effectedaffected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser Encore shall not have notified the Company by 5:30 5:00 p.m. (New York Salt Lake City time) on the fifth tenth (5th10th) Trading Day after its receipt of the Subsequent Placement Financing Notice of its willingness to cause such Purchaser either or both of the Purchasers to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Financing Notice. If the Purchasers Encore shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Financing Notice; provided, that the Company shall provide the Purchasers Encore with a second Subsequent Placement Financing Notice, and the Purchasers Encore shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement Financing subject to the initial Subsequent Placement Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Financing Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Financing Notice. The rights of the Purchasers under granted to Encore in this Section shall apply 4.9(a) are subject to each Subsequent Placement contemplated by the Company prior right of first refusal granted to Southbrook International Investments, Ltd. as and to the extent such rights, if any, exist on the date hereof, but not subject to any modifications, extensions or assignments of such Subsidiaryrights of Southbrook International Investments, regardless of any prior waivers or non-participation.Ltd.
Appears in 1 contract
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of Purchasers holding a majority of the PurchasersShares, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equity- equivalent securities including the issuance of any debt or a other instrument at any time over the life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (collectively, a "Subsequent Placement") until for a period of 180 days after the 180th Effective Date, provided, that such 180 day after period shall be extended for the number of Trading Days during such period (A) in which trading in the Common Stock is suspended by any securities exchange or market or quotation system on which the Common Stock is then listed, or (B) during which the Underlying Shares Registration Statement is first declared effective not effective, or (C) during which the prospectus included in the Underlying Shares Registration Statement may not be used by the Commission, except (i) holders thereof for the granting resale of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof, and (iii) shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms thereofUnderlying Shares, unless (A) the Company delivers to each Purchaser of the Purchasers a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 6:30 p.m. (New York City time) on the fifth (5th) Trading Day seventh day after its receipt of the Subsequent Placement Notice of its their willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company in the amount and on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights If the Purchasers shall indicate a willingness to provide financing in excess of the amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro-rata portion of the aggregate number of Shares purchased by such Purchaser under this Agreement, but the Company shall not be required to accept financing from the Purchasers under in an amount in excess of the amount set forth in the Subsequent Placement Notice. The right of firs refusal set forth in this Section shall not apply to each Subsequent Placement contemplated (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company or such SubsidiaryCompany, regardless (ii) shares of Common Stock issuable upon exercise of any prior waivers currently outstanding warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case disclosed in the SEC Documents, but not with respect to any amendment or non-participationmodification thereto, and (iii) shares of Common Stock issuable upon conversion of Shares in accordance with the Certificate of Designation in accordance with its respective terms.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Dynagen Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity equity, debt or equity-equivalent securities or a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable upon conversion of Preferred Stock and upon exercise of the Warrants in accordance with the terms thereofCertificate of Designation or the Warrants, respectively, unless (A) the Company delivers to each Purchaser the Purchasers a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser the Purchasers shall not have notified the Company by 5:30 6:30 p.m. (New York City time) on the fifth (5th) Trading Day after its their receipt of the Subsequent Placement Notice of its their willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same conversion, reset and pricing terms (including original issue discount, if any) and substantially on such other terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.right
Appears in 1 contract
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities including the issuance of any debt or a other instrument at any time over life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent PlacementSUBSEQUENT PLACEMENT") until for a period of 180 Trading Days after the 180th day after Effective Date, PROVIDED, that such 180 Trading Day period shall be extended for the number of Trading Days during such period (A) in which trading in the Common Stock is suspended by the AMEX or such market or quotation system on which the Common Stock is then listed, or (B) during which the Underlying Shares Registration Statement is first declared effective not effective, or (C) during which the prospectus included in the Underlying Shares Registration Statement may not be used by the Commissionholders thereof for the resale of Underlying Shares, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule SCHEDULE 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable upon conversion of Debentures and upon exercise of the Warrants in accordance with the terms thereofDebentures or the Warrants, and (iv) shares of Common Stock issued in connection with a Strategic Transaction (as defined below) or as payment of purchase price in connection with a bona fide business combination, unless (A) the Company delivers to each Purchaser of the Purchasers a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.to
Appears in 1 contract
Samples: Convertible Debenture Purchase Agreement (Horizon Pharmacies Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the PurchasersPurchaser, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or in a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent PlacementSUBSEQUENT PLACEMENT") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereofSCHEDULE 2.1(C), and (iii) shares of Common Stock issuable issued upon conversion of Debentures and as payment of interest thereon and upon exercise of the Warrants Warrant in accordance with the terms thereofDebentures or the Warrant, respectively, and (iv) securities which may be issued in connection with a joint venture or strategic alliance unless (A) the Company delivers to each the Purchaser a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effectedaffected, and attached to which shall be a term sheet or similar document relating thereto and (B) such the Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such the Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentationdocumentation (which, if the Purchaser shall have indicated willingness to provide such financing, the Purchaser shall use its reasonable and good faith effort to complete prior to twenty (20) Trading Days from the date of its notice to the Company to provide such financing), financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers Purchaser shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; providedPROVIDED, that the Company shall provide the Purchasers Purchaser with a second Subsequent Placement Notice, and the Purchasers Purchaser shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Samples: Convertible Debenture Purchase Agreement (Intelligent Medical Imaging Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities including the issuance of any debt or a other instrument at any time over the life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (collectively, a "Subsequent PlacementSUBSEQUENT PLACEMENT") until for a period of 180 days after the 180th Effective Date, PROVIDED, that such 180 day after period shall be extended for the number of Trading Days during such period (A) in which trading in the Common Stock is suspended by any securities exchange or market or quotation system on which the Common Stock is then listed, or (B) during which the Underlying Shares Registration Statement is first declared effective not effective, or (C) during which the prospectus included in the Underlying Shares Registration Statement may not be used by the Commissionholders thereof for the resale of Underlying Shares, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule SCHEDULE 2.1(c) but not ), except as with respect to any amendment or modification thereofthereto, and (iii) shares of Common Stock issuable upon conversion of Shares in accordance with the Certificate of Designation and upon exercise of the Warrants in accordance with the terms thereoftheir respective terms, unless (A) the Company delivers to each Purchaser of the Purchasers a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 p.m. (New York City time) on the fifth (5th) tenth Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to so notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; providedPROVIDED, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights If the Purchasers shall indicate a willingness to provide financing in excess of the Purchasers amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro-rata portion of the aggregate number of Shares purchased by such Purchaser under this Section Agreement, but the Company shall apply not be required to each accept financing from the Purchasers in an amount in excess of the amount set forth in the Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participationNotice.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Internet Law Library Inc)
Right of First Refusal; Subsequent Registrations. (a) The Subject to the provisions of Section 3.11(b), the Company shall not, directly or indirectly, without the prior written consent of the PurchasersPurchaser, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or in a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day for a period of 360 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c), (iii) but Common Stock issued on a primary basis pursuant to an underwritten public offering, so long as any shares of Common Stock sold in such underwritten offering are not with respect to any amendment or modification thereof, sold at a price less than the average of the Per Share Market Values on the five (5) Trading Days immediately preceding the sale of such Common Stock and (iiiiv) shares of Common Stock issuable issued upon conversion of Preferred Stock and as payment of dividends thereon and upon exercise of the Warrants Warrant in accordance with the terms thereofArticles of Amendment or the Warrant, respectively, unless (A) the Company delivers to each the Purchaser a written notice (the "Subsequent Placement Notice") of its intention effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such the Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers Purchaser shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers Purchaser with a second Subsequent Placement Notice, and the Purchasers Purchaser shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement -13- Convertible Preferred Stock Purchase Agreement 15 Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Tanisys Technology Inc)
Right of First Refusal; Subsequent Registrations. (a) The Subject to the provisions of Section 4.9, while the Notes are outstanding the Company shall not, directly or indirectly, without the prior written consent of the PurchasersInvestors, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' ’ equity or equity-equivalent securities including the issuance of any debt or a other instrument at any time over the life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (a "“Subsequent Placement") until the 180th day after the Underlying Shares Registration Statement is first declared effective by the Commission”), except (i) the granting of options options, warrants, or warrants shares to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option incentive plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable upon exercise conversion of the Warrants outstanding principal amount and interest due under the Notes in accordance with the terms thereofNotes, unless (A) the Company delivers to each Purchaser the Investors a written notice (the "“Subsequent Placement Notice"”) of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser the Investors shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser the Investors to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers Investors shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers Investors with a second Subsequent Placement Notice, and the Purchasers Investors shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities including the issuance of any debt or a other instrument at any time over life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent PlacementSUBSEQUENT PLACEMENT") until for a period of 180 days after the 180th Effective Date, provided, that such 180 day after period shall be extended for the number of Trading Days during such period (A) in which trading in the Common Stock is suspended by any securities exchange or market or quotation system on which the Common Stock is then listed, or (B) during which the Underlying Shares Registration Statement is first declared effective not effective, or (C) during which the prospectus included in the Underlying Shares Registration Statement may not be used by the Commissionholders thereof for the resale of Underlying Shares, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof2.1(C), and (iii) shares of Common Stock issuable upon conversion of Shares in accordance with the Certificate of Designation and upon exercise of the Warrants in accordance with their terms, (iv) shares of Common Stock issued in connection with a Strategic Transaction (as defined below), and (v) issuances of shares of Common Stock as payment of the terms thereofpurchase price for an acquisition of assets or stock of an unaffiliated Person, unless (A) the Company delivers to each Purchaser of the Purchasers a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Samples: Secured Convertible Preferred Stock Purchase Agreement (Celexx Corp)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the PurchasersPurchaser, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable issued upon conversion of Preferred Stock and as payment of dividends thereon and upon exercise of the Warrants Warrant in accordance with the terms thereofCertificate of Designation or the Warrant, respectively, unless (A) the Company delivers to each the Purchaser a written notice (the "Subsequent Placement Notice") of its intention effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such the Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such the Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers Purchaser shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers Purchaser with a second Subsequent Placement Notice, and the Purchasers Purchaser shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (I Link Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company ------------------------------------------------ shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities including the issuance of any debt or a other instrument at any time over life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the Commission-------------------- Closing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule -------- 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable upon conversion of Debentures and ------ upon exercise of the Warrants in accordance with the terms thereofDebentures or the Warrants, respectively, (iv) shares of Common Stock issued as payment of the purchase price in connection with a Strategic Transaction (as defined below), and (v) shares of Common Stock issued in connection with a public offering, unless (A) the Company delivers to each Purchaser the Purchasers a written notice (the "Subsequent ---------- Placement Notice") of its intention to effect such Subsequent Placement, which ---------------- Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser the Purchasers shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10/th/) Trading Day after its their receipt of the Subsequent Placement Notice of its their willingness to cause such Purchaser the Purchasers to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall notify the Company of their intention to enter into negotiations, the closing of such financing shall occur at a date no later than thirty (30) Trading Days after the Company's receipt of such notification. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the -------- Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.to
Appears in 1 contract
Samples: Convertible Debenture Purchase Agreement (Sonic Foundry Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities including the issuance of any debt or a other instrument at any time over the life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (collectively, a "Subsequent PlacementSUBSEQUENT PLACEMENT") until for a period of 180 days after the 180th Effective Date, PROVIDED, that such 180 day after period shall be extended for the number of Trading Days during such period (A) in which trading in the Common Stock is suspended by any securities exchange or market or quotation system on which the Common Stock is then listed, or (B) during which the Underlying Shares Registration Statement is first declared effective not effective, or (C) during which the prospectus included in the Underlying Shares Registration Statement may not be used by the Commissionholders thereof for the resale of Underlying Shares, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule SCHEDULE 2.1(c) but not ), except as with respect to any amendment or modification thereofthereto, and (iii) shares of Common Stock issuable upon conversion of Shares in accordance with the Certificate of Designation and upon exercise of the Warrants in accordance with the terms thereoftheir respective terms, unless (A) the Company delivers to each Purchaser of the Purchasers a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 p.m. (New York City time) on the fifth (5th) tenth Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to so notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; providedPROVIDED, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights If the Purchasers shall indicate a willingness to provide financing in excess of the Purchasers amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro-rata portion of the aggregate number of Shares purchased by such Purchaser under this Section Agreement, but the Company shall apply not be required to each accept financing from the Purchasers in an amount in excess of the amount set forth in the Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participationNotice.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Internet Law Library Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the PurchasersPurchaser, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent PlacementSUBSEQUENT PLACEMENT") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule SCHEDULE 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares Underlying Shares issued pursuant to Section 3.16, upon conversion of Common Stock issuable Shares, as payment of dividends thereon, and upon exercise of the Warrants in accordance with the terms thereofArticles of Amendment or the Warrants, respectively, or (iv) any securities issued in connection with a strategic alliance or license agreement or marketing or similar joint venture agreement, unless (A) the Company delivers to each the Purchaser a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effectedaffected, and attached to which shall be a term sheet or similar document relating thereto and (B) such the Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such the Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers Purchaser shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; providedPROVIDED, that the Company shall provide the Purchasers Purchaser with a second Subsequent Placement Notice, and the Purchasers Purchaser shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Big Entertainment Inc)
Right of First Refusal; Subsequent Registrations. (a) The Subject to the provisions of Section 3.11(b), the Company shall not, directly or indirectly, without the prior written consent of the PurchasersPurchaser, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or in a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent PlacementSUBSEQUENT PLACEMENT") until the 180th day for a period of 360 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule SCHEDULE 2.1(c), (iii) but Common Stock issued on a primary basis pursuant to an underwritten public offering, so long as any shares of Common Stock sold in such underwritten offering are not with respect to any amendment or modification thereof, sold at a price less than the average of the Per Share Market Values on the five (5) Trading Days immediately preceding the sale of such Common Stock and (iiiiv) shares of Common Stock issuable issued upon conversion of Preferred Stock and as payment of dividends thereon and upon exercise of the Warrants Warrant in accordance with the terms thereofArticles of Amendment or the Warrant, respectively, unless (A) the Company delivers to each the Purchaser a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such the Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers Purchaser shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; providedPROVIDED, that the Company shall provide the Purchasers Purchaser with a second Subsequent Placement Notice, and the Purchasers Purchaser shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Tanisys Technology Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities including the issuance of any debt or a other instrument at any time over life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until for a period of 180 Trading Days after the 180th day after Effective Date, provided, that such 180 Trading Day period shall be extended for the number of Trading Days during such period (A) in which trading in the Common Stock is suspended by the securities exchange or such market or quotation system on which the Common Stock is then listed, or (B) during which the Underlying Shares Registration Statement is first declared effective not effective, or (C) during which the prospectus included in the Underlying Shares Registration Statement may not be used by the Commissionholders thereof for the resale of Underlying Shares, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option or employee stock purchase plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment amendments or modification thereofmodifications thereof (except pursuant to the foregoing clause (i)), and (iii) shares of Common Stock issuable upon conversion of Notes and upon exercise of the Warrants in accordance with the terms thereofNotes or the Warrants, (iv) up to 1,000,000 shares of Common Stock issued at a fixed price of not less than $3.50 per share (subject to adjustment for stock splits) and not subject to any adjustment or reset, pursuant to a private placement transaction, (v) securities issued pursuant to an underwritten public offering by the Company (and not of any securities of a shareholder of the Company other than up to 4% of the holdings of the Chief Executive Officer of the Company if such participation is required by the rules and regulations of the stock market on which such offering will take place or by the rules and regulations of the securities authority governing such stock market) resulting in gross proceeds to the Company of not less than $10,000,000, where the price per share of Common Stock offered is fixed and the underwriter is an investment bank nationally recognized in the United States of America (if the offering is to be conducted in the United States of America or in Great Britain (if the offering is to be conducted in Great Britain) ("equity lines of credit" or their equivalents shall not satisfy this exception), (iv) issuance pursuant to a private placement to Xxxxxxxxx International, Inc., and (v) shares of Common Stock issued as payment of the purchase price in connection with a Strategic Transaction (as defined below) (the offerings specified in clauses (i)-(v) of this Section not being deemed Subsequent Placements), unless (A) the Company delivers to each Purchaser of the Purchasers a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.Placement
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (Stockgroup Com Holdings Inc)
Right of First Refusal; Subsequent Registrations. (a) The a)The Company shall not, directly or indirectly, without the prior written consent of the PurchasersPurchaser, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any 9 currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable issued upon conversion of Preferred Stock and as payment of dividends thereon and upon exercise of the Warrants Warrant in accordance with the terms thereofCertificate of Designation or the Warrant, respectively, unless (A) the Company delivers to each the Purchaser a written notice (the "Subsequent Placement Notice") of its intention effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such the Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such the Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers Purchaser shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers Purchaser with a second Subsequent Placement Notice, and the Purchasers Purchaser shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (I Link Inc)
Right of First Refusal; Subsequent Registrations. (a) The Except as provided for in Schedule 3.12, the Company shall not, directly or indirectly, without the prior written consent of the PurchasersPurchaser, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equity equivalent securities or in a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, security in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof2.1 (c), and (iii) shares of Common Stock issuable issued upon exercise conversion of the Warrants Shares and Dividend Shares in accordance with the terms thereofCertificate of Designations, and (iv) shares of Common Stock issued in connection with a Strategic Transaction (as defined below); unless (A) the Company delivers to each the Purchaser a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, the date on which the Company reasonably expects such Subsequent Placement to close and attached to which shall be a term sheet or similar document relating thereto and (B) such the Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth (5th) Trading Business Day after its receipt of the Subsequent Placement Notice of its willingness to cause such the Purchaser to provide (or to cause its sole designee designee, which must be an affiliate of the Purchaser, to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers Purchaser shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers Purchaser with a second Subsequent Placement Notice, and the Purchasers Purchaser shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty sixty (3060) Trading Business Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights If the Purchaser exercises its right of first refusal, the Purchasers under this Section closing shall apply to each take place at the time contemplated in the Subsequent Placement contemplated by Notice, subject to completion of mutually acceptable documentation, which the Company or such Subsidiary, regardless of any prior waivers or non-participation.parties shall negotiate in good faith. For purposes of
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Ecogen Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the PurchasersEncore, offer, sell, grant any option to purchasepurchase (other than the warrants to be issued to Century in connection with the transactions contemplated by this Agreement), or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or in a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the Commissioneach Closing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, preferred stock in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of equity or equity-equivalent securities issued or issuable as part of a primary underwritten offering by the Company, (iv) shares of Common Stock issuable issued upon conversion of Debentures, as payment of interest thereon, or upon exercise of the Warrants in accordance with their respective terms, and (v) equity or equity-equivalent securities issued by the terms thereofCompany in connection with business combinations with non-affiliated third parties or acquisitions of non-affiliated third parties, unless (A) the Company delivers to each Purchaser Encore a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effectedaffected, and attached to which shall be a term sheet or similar document relating thereto thereto, and (B) such Purchaser Encore shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser the Purchasers to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers Encore shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers Encore with a second Subsequent Placement Notice, and the Purchasers Encore shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, sale or grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities including the issuance of any debt or a other instrument at any time over the life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until for a period of 90 Trading Days after the 180th day after Effective Date for the immediately preceding Closing or the expiration without a Closing of the time during which a Closing may take place hereunder, provided, that such 90 Trading Day period shall be extended for the number of Trading Days during such period (A) in which trading in the Common Stock is suspended by the Nasdaq Stock Market or such market or quotation system on which the Common Stock is then listed, or (B) during which the Underlying Shares Registration Statement is first declared effective not effective, or (C) during which the prospectus included in the Underlying Shares Registration Statement may not be used by the Commissionholders thereof for the resale of Underlying Shares, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan or stock purchase plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the CompanyCompany or pursuant to existing obligations, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable upon conversion of Debentures and upon exercise of the Warrants in accordance with the terms thereofDebentures or the Warrants, unless (A) the Company delivers to each Purchaser of the Purchasers a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on by the fifth (5th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights If the Purchasers shall indicate a willingness to provide financing in excess of the Purchasers amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro-rata portion of the aggregate principal amount of Debentures purchased by such Purchaser under this Section Agreement, but the Company shall apply not be required to each accept financing from the Purchasers in an amount in excess of the amount set forth in the Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participationNotice.
Appears in 1 contract
Samples: Convertible Debenture Purchase Agreement (Onemain Com Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the PurchasersEncore Capital Management, L.L.C. ("Encore"), offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or in a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers officers, consultants (other than placement agents, securities bankers or finders) and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable issued upon exercise conversion of the Warrants Preferred Stock and as payment of dividends thereon in accordance with the terms thereofCertificate of Designation, and (iv) securities of Composite Technologies, Inc. and Lamines CTEK Inc.(provided such securities are not convertible into or exchangeable for Common Stock), unless (A) the Company delivers to each Purchaser Encore a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser Encore shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10th) Trading Business Day after its receipt of the Subsequent Placement Notice of its willingness to cause such the Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers Encore shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers Encore with a second Subsequent Placement Notice, and the Purchasers Encore shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Business Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Right of First Refusal; Subsequent Registrations. (a) The Subject to the rights of Monsanto Company and the holders of the Company's Series 1998-A Convertible Preferred Stock, and the Series 1998-B Convertible Preferred Stock, if any, and except as provided for in Schedule 3.6, the Company shall not, directly or indirectly, without the prior written consent of the PurchasersPurchaser, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equity equivalent securities or in a transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, security in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable issued upon exercise conversion of the Warrants Shares and Dividend Shares in accordance with the terms thereofCertificate of Designations, (iv) shares of Common Stock issued in connection with a Strategic Transaction (as defined below); unless (A) the Company delivers to each the Purchaser a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, the date on which the Company reasonably expects such Subsequent Placement to close and attached to which shall be a term sheet or similar document relating thereto and (B) such the Purchaser shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth (5th) Trading Business Day after its receipt of the Subsequent Placement Notice of its willingness to cause such the Purchaser to provide (or to cause its sole designee designee, which must be an affiliate of the Purchaser, to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers Purchaser shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.effect
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Ecogen Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities or in a transaction substantially similar in nature to the transaction hereunder and intended to be exempt or not subject to registration under the Securities Act (a "Subsequent Placement") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable issued upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable issued upon conversion of Debentures and as payment of interest thereon and upon exercise of the Warrants Warrant in accordance with the terms thereofDebentures or the Warrant, respectively, and (iv) securities which may be issued in connection with a joint venture, strategic alliance or a financing with a commercial bank unless (A) the Company delivers to each Purchaser the Purchasers a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effectedaffected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser the Purchasers shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser the Purchasers to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentationdocumentation (which, if the Purchasers shall have indicated willingness to provide such financing, the Purchasers shall use its reasonable and good faith effort to complete prior to twenty (20) Trading Days from the date of its notice to the Company to provide such financing), financing to the Company on substantially the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.
Appears in 1 contract
Samples: Convertible Debenture Purchase Agreement (Vitech America Inc)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities including the issuance of any debt or a other instrument at any time over the life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (collectively, a "Subsequent Placement") until for a period of 180 days after the 180th Closing Date, provided, that such 180 day after period shall be extended for the number of Trading Days(which in the aggregate, may not exceed a total of 90 calendar days) during such period (A) in which trading in the Common Stock is suspended by any securities exchange or market or quotation system on which the Common Stock is then listed, or (B) during which the Underlying Shares Registration Statement is first declared effective not effective, or (C) during which the prospectus included in the Underlying Shares Registration Statement may not be used by the Commission, except (i) holders thereof for the granting resale of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof, and (iii) shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms thereofUnderlying Shares, unless (A) the Company delivers to each Purchaser of the Purchasers a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company in writing by 5:30 6:30 p.m. (New York City time) on the fifth (5th) seventh Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser commitment to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights of the Purchasers under this Section shall apply to each Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participation.,
Appears in 1 contract
Samples: Securities Purchase Agreement (Jaws Technologies Inc /Ny)
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities (including the issuance of any debt or a other instrument is at any time over life thereof convertible into or exchangeable for Common Stock or any other transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent PlacementSUBSEQUENT PLACEMENT") until the 180th day for a period of 180 days after the later to occur of the Effectiveness Date (as defined in the Registration Rights Agreement) and the date that the Commission first declares effective an Underlying Shares Registration Statement is first declared effective by the CommissionStatement, except (i) the granting of options or warrants to employees, consultants, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants (including the Class B Warrants (as defined herein)) and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent only if such security is disclosed in Schedule SCHEDULE 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock or Common Stock Equivalents (as defined in the Debentures) permitted to be issued without giving rise to an Event of Default under Sections 3(a)(xii) or 3(a)(xiii)(a) of the Debentures, and (iv) shares of Common Stock issuable upon conversion of Debentures, as payment of interest thereon and upon exercise of the Warrants in accordance with the terms thereofDebentures or the Warrants, respectively, unless (A) the Company delivers to each Purchaser the Purchasers a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser the Purchasers shall not have notified the Company by 5:30 5:00 p.m. (New York City time) on the fifth tenth (5th10th) Trading Day after its their receipt of the Subsequent Placement Notice of its their willingness to cause such Purchaser the Purchasers to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; providedPROVIDED, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights If the Purchasers shall indicate a willingness to provide financing in excess of the amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro rata portion of the aggregate principal amount of Debentures purchased by the Purchasers under this Section Agreement, but the Company shall apply not be required to each accept financing from the Purchasers in an amount in excess of the amount set forth in the Subsequent Placement contemplated by the Company or such Subsidiary, regardless of any prior waivers or non-participationNotice.
Appears in 1 contract
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its (or its Affiliates' subsidiaries, if any) equity or equity-equivalent securities including the issuance of any debt or a other instrument at any time over the life thereof convertible into or exchangeable for Common Stock, in any transaction intended to be exempt or not subject to registration under the Securities Act (collectively, a "Subsequent Placement") until for a period of 240 days after the 180th Effective Date, provided, that such 240 day after period shall be extended for the number of Trading Days during such period (A) in which trading in the Common Stock is suspended by any securities exchange or market or quotation system on which the Common Stock is then listed, or (B) during which the Underlying Shares Registration Statement is first declared effective not effective, or (C) during which the prospectus included in the Underlying Shares Registration Statement may not be used by the Commission, except (i) holders thereof for the granting resale of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule 2.1(c) but not with respect to any amendment or modification thereof, and (iii) shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms thereofUnderlying Shares, unless (A) the Company delivers to each Purchaser of the Purchasers a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser shall not have notified the Company by 5:30 6:30 p.m. (New York City time) on the fifth (5th) seventh Trading Day after its receipt of the Subsequent Placement Notice of its willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; provided, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section paragraph (a), if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Placement Notice within thirty (30) forty-five Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights If the Purchasers shall indicate a willingness to provide financing in excess of the amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro-rata portion of the aggregate number of Shares purchased by such Purchaser under this Agreement, but the Company shall not be required to accept financing from the Purchasers under in an aggregate amount in excess of the amount set forth in the Subsequent Placement Notice. The right of first refusal set forth in this Section shall not apply to each Subsequent Placement contemplated (i) the issuance of any Common Stock, or options or warrants to purchase Common Stock, to employees, officers or directors of, or consultants to, the Company pursuant to any stock option or stock purchase plan or agreements approved by the Company or such SubsidiaryCompany's Board of Directors, regardless (ii) shares of Common Stock issuable upon exercise of any prior waivers currently outstanding warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case disclosed in Schedule 2.1(c), but not with respect to any amendment or non-participationmodification thereto, (iii) shares of Common Stock issuable upon exercise of the Warrants in accordance with their respective terms, (iv) the issuance of the warrants referred to on Schedule 2.1(l), and (v) the issuance of Shares of Common Stock in connection with a strategic partnership or other business transaction, other than a transaction in which the principal purpose is to raise capital.
Appears in 1 contract
Right of First Refusal; Subsequent Registrations. (a) The Company shall not, directly or indirectly, without the prior written consent of the Purchasers, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity-equivalent securities including the issuance of any debt or a other instrument is at any time over life thereof convertible into or exchangeable for Common Stock, or any other transaction intended to be exempt or not subject to registration under the Securities Act (a "Subsequent PlacementSUBSEQUENT PLACEMENT") until the 180th day for a period of 180 days after the Underlying Shares Registration Statement is first declared effective by the CommissionClosing Date, except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares of Common Stock issuable upon exercise of any currently outstanding options and warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case to the extent disclosed in Schedule SCHEDULE 2.1(c) but not with respect to any amendment or modification thereof), and (iii) shares of Common Stock issuable upon exercise conversion of the Warrants Preferred Stock in accordance with the terms thereofCertificate of Designation, unless (A) the Company delivers to each Purchaser the Purchasers a written notice (the "Subsequent Placement NoticeSUBSEQUENT PLACEMENT NOTICE") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement shall be effected, and attached to which shall be a term sheet or similar document relating thereto and (B) such Purchaser the Purchasers shall not have notified the Company by 5:30 6:30 p.m. (New York City time) on the fifth tenth (5th10th) Trading Day after its their receipt of the Subsequent Placement Notice of its their willingness to cause such Purchaser to provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same conversion, reset and pricing terms (including original issue discount, if any) and substantially on such other terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to notify the Company of their intention to enter into such negotiations within such time period, the Company may effect the Subsequent Placement substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Placement Notice; providedPROVIDED, that the Company shall provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers shall again have the right of first refusal set forth above in this Section (a)Section, if the Subsequent Placement subject to the initial Subsequent Placement Notice shall not have been consummated for any reason on the conversion, reset and pricing terms (including original issue discount, if any) and substantially on such other terms set forth in such Subsequent Placement Notice within thirty (30) Trading Days after the date of the initial Subsequent Placement Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Placement Notice. The rights If the Purchasers shall indicate a willingness to provide financing in excess of the Purchasers amount set forth in the Subsequent Placement Notice, then each Purchaser shall be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro rata portion of the aggregate number of Shares purchased by such Purchaser under this Section Agreement, but the Company shall apply not be required to each accept financing from the Purchasers in an amount less than or in excess of the amount set forth in the Subsequent Placement contemplated Notice. Except for (x) Underlying Shares, (y) other "Registrable Securities" (as such term is defined in the Registration Rights Agreement) to be registered, and securities of the Company permitted pursuant to SCHEDULE 6(b) of the Registration's Rights Agreement to be registered, in the Underlying Shares Registration Statement in accordance with the Registration Rights Agreement, and (z) Common Stock permitted to be issued pursuant to paragraph (a)(i) - (iii) of Section 3.9(a), the Company shall not, without the prior written consent of the Purchaser (i) issue or sell any of its or any of its Affiliates' equity or equity-equivalent securities pursuant to Regulation S promulgated under the Securities Act, or (ii) register for resale any securities of the Company for a period of not less than 90 Trading Days after the date that the Underlying Shares Registration Statement is declared effective by the Company or Commission. Any days that a Purchaser is unable to sell Underlying Shares under the Underlying Shares Registration Statement shall be added to such Subsidiary, regardless 90 Trading Day period for the purposes of any prior waivers or non-participation(i) and (ii) above.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Intelidata Technologies Corp)
