Common use of Right of Participation Clause in Contracts

Right of Participation. The Company shall, prior to any proposed issuance by the Company of any of its securities (other than debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) days, to purchase for cash at a price equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to it upon conversion, exercise and exchange of all securities (including but not limited to the Shares) held by it on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Purchasers pursuant to this Section 8.1 shall not apply to securities issued: (a) upon conversion of any of the shares of Preferred Stock; (b) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. are limited to additional shares of Common Stock; (c) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; (d) pursuant to a firm commitment underwritten public offering; (e) pursuant to and in accordance with Section 2 of this Agreement; or (f) as the grant or issuance to directors, officers, employees or consultants of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event with respect to the Common Stock) of Common Stock (the "Reserved Shares") pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise of such options or the exercise of any options which are outstanding as of the date hereof (which issuance shall dilute all of the Company's stockholders on a pro rata basis) or (ii) the grant or issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance of shares of Common Stock pursuant to the exercise of such options (which issuance shall dilute all of the Company's stockholders on a pro rata basis), pursuant to any qualified or non-qualified stock option plan or agreement, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office with the concurrence of the directors elected by the holders of Preferred Stock.

Appears in 1 contract

Samples: Series E 1 Convertible Preferred Stock Purchase Agreement (NeuroMetrix, Inc.)

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Right of Participation. The This Section 3.3 shall apply until the earlier of (I) July 31, 2006, (ii) the conversion of all of the outstanding shares of Series A Convertible Preferred Stock into Common Stock, or (iii) the exchange of all of the shares of Series A Convertible Preferred Stock then held by SDS for the common stock of Merlin in accordance with that certain Securities Purchase Agreement, dated on even date herewith among SDS, Merlin and the Company. (a) If at any time a Selling Stockholder desires to Transfer any Equity Securities in the Company shallbeneficially owned by such Selling Stockholder to any Proposed Transferee as permitted under Section 3.1(d), then, after having first complied with any and all other applicable provisions of this Agreement, the Selling Stockholder shall deliver a Co-Sale Notice to the Investors at least 30 days' prior to any the proposed issuance by Transfer. (b) Each Investor that notifies the Company Selling Stockholder as provided in Section 3.3(c) below (now, a "Participating Investor" for purposes of any of its securities (other than debt securities with no equity feature), offer to each Purchaser by written notice this Section 3.3) shall have the right, for a period of thirty (30) daysbut not the obligation, to purchase for cash participate in such Transfer at a the same price equal and upon the same terms and conditions as involved in such Transfer by the Selling Stockholder (provided that if any Participating Investor does not own the type of Equity Securities proposed to be Transferred by the Selling Stockholder to the price or other consideration for which Proposed Transferee, such securities are Participating Investor shall have the right to Transfer that type of Equity Security that such Participating Investor does own as most closely resembles the type of Equity Securities proposed to be issuedTransferred by the Selling Stockholder), and such Selling Stockholder shall make effective arrangements for such participation (which shall be a condition to any Transfer by the Selling Stockholder). To the extent one or more of the Investors exercise such right of participation, each Participating Investor may Transfer all or any portion of such number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership Equity Securities in the Company to be Transferred by such Participating Investor as is obtained by multiplying the number of Equity Securities covered by the date Co-Sale Notice by a fraction, (I) the numerator of such notice (treating each Purchaser, for which is the purpose of such computation, as the holder of the aggregate number of shares of Common Stock then outstanding on a Fully-Diluted Basis owned by such Participating Investor, and (ii) the denominator of which would be issuable to it upon conversion, exercise and exchange is the sum of all securities (including but not limited to the Shares) held by it on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock then outstanding on a Fully-Diluted Basis owned by the Selling Stockholder and assuming all Participating Investors, and the like conversionnumber of Equity Securities that the Selling Stockholder may Transfer shall be correspondingly reduced. (c) If an Investor wishes to so participate in any Transfer under this Section 3.3, exercise it shall notify the Selling Stockholder of such intention as soon as practicable after its receipt of the Co-Sale Notice, but in any event within 30 days thereafter. As a condition to participation, each Participating Investor shall be required to deliver, at the closing of such Transfer, a certificate to the Proposed Transferee pursuant to which such Participating Investor shall represent and exchange warrant to the Proposed Transferee with respect to the Equity Securities being Transferred by such Participating Investor that the Proposed Transferee is receiving good and marketable title to such Equity Securities, free and clear of all Liens created by such other securities held Participating Investor, and no Participating Investor shall be required to make any additional representations and warranties to the Proposed Transferee. (d) The Selling Stockholder shall update the Co-Sale Notice by other persons) ("Pro Rata Share"); providedpromptly providing to each Investor notice of any material changes to the information contained therein, however, that the participation rights including changes to any of the Purchasers definitive documentation originally provided along with the Co-Sale Notice. Upon receipt of each such updated notice, (I) each Participating Investor shall have the right to withdraw such Participating Investor's election to participate and (ii) each non-Participating Investor shall have the right to elect to participate, in each case by delivery of written notice to that effect to the Selling Stockholder within the greater of (A) the number of days remaining in the 30-day period referred to in subsection (c) above or (B) five days after its receipt of such updated Co-Sale Notice. (e) Upon compliance with the provisions of this Section 3.3, the Selling Stockholder and each Participating Investor shall Transfer to the Proposed Transferee all of the Equity Securities proposed to be Transferred by them at not less than the price and upon terms and conditions not more favorable to the Proposed Transferee than those contained in the Co-Sale Notice (or the final update thereto pursuant to Section 3.3(d)). As a condition to such sale, the Selling Stockholder shall use best efforts to limit the liability of each Participating Investor to the proceeds received by such Participating Investor. The Company shall use its best efforts to aid in the closing of any such Transfer, including, but not limited to, exchanging any certificates representing each Participating Investor's Equity Securities for new certificates in requested denominations. (f) The exercise or non-exercise by any Investor of its rights pursuant to this Section 8.1 3.3 shall not apply be without prejudice to securities issued: (a) upon conversion of any of the shares of Preferred Stock; (b) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. are limited to additional shares of Common Stock; (c) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; (d) pursuant to a firm commitment underwritten public offering; (e) pursuant to and in accordance with Section 2 of rights under this Agreement; or (f) as the grant or issuance to directors, officers, employees or consultants of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event Article III with respect to the Common Stock) of Common Stock (the "Reserved Shares") pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise of such options or the exercise of any options which are outstanding as of the date hereof (which issuance shall dilute all of the Company's stockholders on a pro rata basis) or (ii) the grant or issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance of shares of Common Stock pursuant to the exercise of such options (which issuance shall dilute all of the Company's stockholders on a pro rata basis), pursuant to any qualified or non-qualified stock option plan or agreement, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office with the concurrence of the directors elected future Transfers by the holders of Preferred StockSelling Stockholder.

Appears in 1 contract

Samples: Stockholders Agreement (Merlin Software Technologies International Inc)

Right of Participation. The Company shall(a) If one or more DLJ Parties and/or Permitted Transferees (if any) propose to sell Common Shares or Common Share Equivalents for value (such DLJ Parties and any such Permitted Transferees being referred to herein as a "Transferor") in one transaction or a series of related transactions, prior but excluding (a) a sale which is pursuant to a Qualified IPO or (b) any sale in which all of the Parties agree to participate, then such Transferor shall offer (the "Participation Offer") to include in the proposed issuance sale a number of Common Shares or Common Shares represented by Common Share Equivalents designated by any of the Company Parties, not to exceed, in respect of any such Party, the number of its securities (other than debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) days, to purchase for cash at a price Common Shares equal to the price product of (i) the aggregate number of Common Shares or other consideration for which such securities are Common Shares represented by Common Share Equivalents to be issuedsold to the proposed transferee and (ii) a fraction, a the numerator of which is equal to the number of Fully-Diluted Common Shares held by such securities so thatParty and the denominator of which is equal to the number of Fully-Diluted Common Shares. The Transferor shall give written notice to each Party of the Participation Offer (the "Transferor's Notice") at least 20 days prior to the proposed sale. The Transferor's Notice shall specify the proposed transferee, after giving effect the number of Common Shares or Common Shares represented by Common Share Equivalents and, if applicable, the class or classes of Common Shares to be sold to such issuance (transferee, the amount and type of consideration to be received therefor, and the conversion, exercise place and exchange into date on which the sale is to be consummated. Each Party who wishes to include Common Shares or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership Share Equivalents in the Company as proposed sale in accordance with the terms of this Section 3.2 shall so notify the Transferor not more than 20 days after the date of such notice (treating each Purchaserthe Transferor's Notice. The Participation Offer shall be conditioned upon the Transferor's sale of Common Shares or Common Share Equivalents pursuant to the transactions contemplated in the Transferor's Notice with the transferee named therein. If any Party accepts the Participation Offer, for the purpose of such computation, as Transferor shall reduce to the holder of extent necessary the number of shares Common Shares or Common Share Equivalents it otherwise would have sold in the proposed sale so as to permit other Parties who have accepted the Participation Offer to sell the number of Common Stock which would be issuable Shares or Common Share Equivalents that they are entitled to it upon conversionsell under this Section 3.2, exercise and exchange the Transferor and such other Party or Parties shall sell the number of all securities (including but not limited Common Shares or Common Share Equivalents specified in the Participation Offer to the Shares) held by it on proposed transferee in accordance with the date terms of such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming sale set forth in the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Purchasers pursuant to this Section 8.1 shall not apply to securities issued: (a) upon conversion of any of the shares of Preferred Stock;Transferor's Notice. (b) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. are limited to additional shares of Common Stock; (c) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; (d) pursuant to a firm commitment underwritten public offering; (e) pursuant to and in accordance with Section 2 The provisions of this Agreement; or (f) as Section 3.2 shall terminate upon the grant or issuance to directors, officers, employees or consultants consummation of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event with respect to the Common Stock) of Common Stock (the "Reserved Shares") pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise of such options or the exercise of any options which are outstanding as of the date hereof (which issuance shall dilute all of the Company's stockholders on a pro rata basis) or (ii) the grant or issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance of shares of Common Stock pursuant to the exercise of such options (which issuance shall dilute all of the Company's stockholders on a pro rata basis), pursuant to any qualified or non-qualified stock option plan or agreement, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office with the concurrence of the directors elected by the holders of Preferred StockQualified IPO.

Appears in 1 contract

Samples: Subordinated Note Holders Stockholders Agreement (Wilson Greatbatch Technologies Inc)

Right of Participation. The For so long as at least two-thirds of the Preferred Shares and the Conversion Shares in the aggregate, remain held by the Investor or his affiliates, the Company shall, prior to any proposed issuance by the Company of any of its securities (other than debt securities with no equity feature), offer to each Purchaser the Investor by written notice the right, for a period of thirty (30) 15 days, to purchase for cash at a price equal to the price or other consideration for which such securities are to be issued, issued a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser the Investor will continue to maintain its his same proportionate beneficial equity ownership in the Company represented by the Preferred Shares, the Conversion Shares and any other shares of Common Stock that he owns, if any, as of the date of such notice (treating each Purchaserthe Investor, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to it the Investor upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by it the Investor on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Purchasers Investor pursuant to this Section 8.1 8 shall not apply to securities issued: issued (aA) upon conversion of any of the shares of Preferred Stock; Shares, (bB) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. subdivision are limited to additional shares of Common Stock; , (cC) pursuant to rights to acquire Common Stock from the Company outstanding on January 1, 2005 set forth in Schedule 8(C), (D) pursuant to options to purchase Common Stock from the Company issued to employees, consultants and members of the Board of Directors (provided that such excluded options or equity incentives are approved by a majority of the disinterested members of the Board of Directors of the Company), (E) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; , (dF) pursuant to a firm commitment underwritten public offering; (e) pursuant to and in accordance with Section 2 of this Agreement; or (f) as the grant or issuance to directors, officers, employees or consultants of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event with respect to the Common Stock) of Common Stock (the "Reserved Shares") pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise of such options or the exercise of any options which are outstanding as of the date hereof (which issuance shall dilute all offering of the Company's stockholders on a pro rata basis) or (ii) the grant or issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance of shares of Common Stock pursuant securities. The Company's written notice to the exercise of such options (which issuance Investor shall dilute all of describe the securities proposed to be issued by the Company and specify the number, price and payment terms. The Investor may accept the Company's stockholders on a pro rata basis)offer as to the full number of securities offered to him or any lesser number, pursuant by written notice thereof given by him to the Company prior to the expiration of the aforesaid 15 day period, in which event the Company shall sell and the Investor shall buy, upon the terms specified, the number of securities agreed to be purchased by Investor. The Company shall thereafter be free at any time prior to ninety days after the date of its notice of offer to the Investor to offer and sell to any qualified third party the remainder of such securities proposed to be issued by the Company at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Investor. If such third party sale or nonsales are not consummated within such ninety-qualified stock option plan or agreementday period, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation the Company shall not sell such securities as shall not have been purchased within such period without again complying with this Section 8. The right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then participation set forth in office this Section 8 shall also apply to and be proportionately shared with the concurrence participation rights of the directors elected by the holders of any other person who has acquired Preferred StockShares.

Appears in 1 contract

Samples: Securities Purchase Agreement (Good Times Restaurants Inc)

Right of Participation. (a) The Company shall, prior to any proposed issuance by the Company of any of its securities (other than debt securities with no equity feature), offer to each the Purchaser by written notice the right, for a period of thirty fifteen (3015) days, to purchase for cash at a price an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such the Purchaser will continue to maintain its same proportionate equity ownership in the Company represented by the Preferred Shares and the Conversion Shares that it owns, if any, as of the date of such notice (treating each the Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to it the Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by it such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Purchasers Purchaser pursuant to this Section 8.1 6.02 shall not apply to securities issued: issued (aA) upon conversion of any of the shares of Preferred Stock; Shares, (bB) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. subdivision are limited to additional shares of Common Stock; , (cC) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule III as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; , (dE) pursuant to a firm commitment underwritten public offering;. The Company's written notice to the Purchaser shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. (The number of shares that the Purchaser is entitled to purchase under this Section 6.02 shall be referred to as its "Pro Rata Share." The total number of shares that the Purchaser is entitled to purchase under this Section 6.02 shall be referred to as "Offered Shares"). (eb) pursuant to and in accordance with Section 2 of this Agreement; or (f) as the grant or issuance to directors, officers, employees or consultants of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event with respect to the Common Stock) of Common Stock (the "Reserved Shares") pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise of such options or the exercise of any options which are outstanding as of the date hereof (which issuance shall dilute all of The Purchaser may accept the Company's stockholders on a pro rata basis) offer as to the full number of securities offered to it or (ii) any lesser number, by written notice thereof given by it to the grant or issuance of additional options Company prior to directors, officers, employees and consultants the expiration of the Corporation or aforesaid fifteen (15) day period, in which event the Company shall sell and the Purchaser shall buy, upon the terms specified, the number of securities agreed to be purchased by Purchaser. The Company shall then be free at any subsidiary, or time prior to ninety (90) days after the issuance date of shares its notice of Common Stock pursuant offer to the exercise Purchaser, to offer and sell to any third party or parties the remainder of such options securities proposed to be issued by the Company (which issuance shall dilute all of including but not limited to the Company's stockholders on a pro rata basissecurities not agreed by the Purchaser to be purchased by it), pursuant at a price and on payment terms no less favorable to any qualified the Company than those specified in such notice of offer to the Purchaser. However, if such third party sale or non-qualified stock option plan or agreementsales are not consummated within such ninety (90) day period, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office Company shall not sell such securities as shall not have been purchased within such period without again complying with the concurrence of the directors elected by the holders of Preferred Stockthis Section 6.02.

Appears in 1 contract

Samples: Convertible Preferred Stock Purchase Agreement (Good Times Restaurants Inc)

Right of Participation. The Company shall, prior to any proposed issuance by the Company of any of its securities (other than debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) days, to purchase for cash at a price an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to it such Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by it such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Purchasers pursuant to this Section 8.1 5.2 shall not apply to securities issued: issued (aA) upon conversion of any of the shares of Preferred Stock; Shares, (bB) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. subdivision are limited to additional shares of Common Stock; , (cC) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule III as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; , (dE) pursuant to a firm commitment underwritten public offering; , (eF) pursuant to and in accordance with Section 2 the exercise of this Agreement; or (f) as the grant or issuance options to purchase Common Stock granted to directors, officers, employees or consultants of the Company in connection with their service to the Company, or any subsidiary of options and/or restricted stock awards to purchase up suppliers or other parties as payment for goods or services rendered to 893,927 the Company, not to exceed in the aggregate 3,927,629 shares (equitably appropriately adjusted in the event of any to reflect stock splitsplits, stock dividenddividends, combination, reclassification, recapitalization, reorganization or other similar event combinations of shares and the like with respect to the Common Stock) less the number of Common Stock shares (as so adjusted) issued pursuant to subscriptions, warrants, options, convertible securities, or other rights outstanding on the date of this Agreement and listed in Schedule III pursuant to clause (C) above (the shares exempted by this clause (F) being hereinafter referred to as the "Reserved Employee Shares"), and (G) pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise of such options or upon the exercise of any options right which are outstanding as was not itself in violation of the date hereof (which issuance shall dilute all terms of the Company's stockholders on a pro rata basis) or (ii) the grant or issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance of shares of Common Stock pursuant to the exercise of such options (which issuance shall dilute all of the Company's stockholders on a pro rata basis), pursuant to any qualified or non-qualified stock option plan or agreement, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office with the concurrence of the directors elected by the holders of Preferred Stockthis Section 5.

Appears in 1 contract

Samples: Series B Convertible Preferred Stock Purchase Agreement (New Era of Networks Inc)

Right of Participation. The Company shall, prior to any proposed issuance by the Company of any of its equity securities (other than debt or securities with no that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) equity featuresecurities of the Company), offer to each Purchaser by written notice the right, for a period of thirty (30) 30 days, to purchase for cash (at a purchase price equal to the price or other consideration for which such securities are to be issued, ) a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares equity securities of Common Stock the Company of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock held by such Purchaser on the date such offer is made and the number of shares of Common Stock which would be issuable to it such Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by it such Purchaser on the date such offer is made, made that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares equity securities of Common Stock the Company, and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Purchasers pursuant to this Section 8.1 6.02 shall not apply to securities issued: issued (a) upon conversion of any of the shares of Preferred Stock; Shares, (b) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. subdivision are limited to additional shares of Common Stock; , (c) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; , (d) pursuant to a firm commitment underwritten public offering; offering or (e) pursuant to and in accordance with Section 2 the exercise of this Agreement; or (f) as the grant or issuance options to purchase Common Stock granted to directors, officers, employees or consultants of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event with respect to the Common Stock) of Common Stock (the "Reserved Shares") pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise of such options or the exercise of any options which are outstanding as of the date hereof (which issuance shall dilute all of the Company's stockholders on a pro rata basis) or (ii) the grant or issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance of shares of Common Stock pursuant to the exercise of such options (which issuance shall dilute all of the Company's stockholders on a pro rata basis), pursuant to any qualified or non-qualified stock option plan or agreement, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by the affirmative vote of the holders of at least a majority of the members outstanding shares of the Board of Directors of the Corporation then in office with the concurrence of the directors elected by the holders of Preferred Stock.Series C

Appears in 1 contract

Samples: Securities Purchase Agreement (Meridian Financial Corp)

Right of Participation. Subject to the terms and conditions specified in this Section 4.1 and Section 7.3, and applicable securities laws, in the event the Company proposes to offer or sell any Additional Equity Securities, each holder of Preferred Shares (each an “Offeree”) shall be entitled to purchase up to its Pro Rata Share (as defined below) of the Additional Equity Securities in accordance with the following provisions of this Section 4.1. Any Offeree shall be entitled to apportion the right of first offer hereby granted to it among its Affiliates and itself in such proportions as it deems appropriate; provided that such Affiliates do not hold any equity interest in the Competitor (as defined below). Each Offeree’s “Pro Rata Share” for purposes of this Section 4.1 is the ratio of (a) the number of Class A Ordinary Shares (calculated on an as-converted and fully-diluted basis) held by such Offeree (specially, for each of Founder Holdcos, GSR, GGV and Lightspeed, the number of Class A Ordinary Shares calculated on an as-converted and fully-diluted basis of only Preferred Shares held by such Offeree), to (b) the total number of Class A Ordinary Shares (calculated on an as-converted and fully-diluted basis) then outstanding immediately prior to the issuance of Additional Equity Securities. (a) The Company shallshall deliver a notice, prior in accordance with the provisions of Section 8.4 hereof, (the “Offer Notice”) to the Offerees stating (i) its bona fide intention to offer such Additional Equity Securities, (ii) the number of such Additional Equity Securities to be offered, (iii) the price and terms, if any, upon which it proposes to offer such Additional Equity Securities, and (iv) the identity of the proposed purchaser(s). (b) Within twenty (20) calendar days after receipt of the Offer Notice (the “Offer Notice Period”), each Offeree shall have an option to elect to purchase an amount up to its Pro Rata Share of the Additional Equity Securities at the same price and subject to the same terms as specified in the Offer Notice. (c) Each Offeree may exercise such purchase option and thereby, have the right to purchase all or any portion of its Pro Rata Share (with the re-allotments as provided below) of the Additional Equity Securities, by notifying the Company in writing, before the expiration of the twenty (20) calendar days period as to the number of such shares that it wishes to purchase. (d) Subject to the terms and conditions specified in Section 7.3 hereof, in the event the Company proposes to offer or sell any Additional Equity Securities to any proposed issuance by the Company of Person listed on Exhibit E attached hereto and/or any of its securities Affiliates (other than debt securities with no equity feature)each, offer to each Purchaser by a “COSMIC BLUE Restricted Person”) during COSMIC BLUE Restricted Period, within ten (10) calendar days after the expiration of the Offer Notice Period specified in Section 4.1(b) above, so long as COSMIC BLUE or its Affiliates holds any Shares in the Company, the Company shall give COSMIC BLUE a written notice (the right, “COSMIC BLUE Additional Offer Notice”) which shall include all the information required in the Offer Notice and shall additionally identify the remaining Additional Equity Securities which equals to the total amount of Additional Equity Securities minus the amount of Additional Equity Securities purchased by the Offerees pursuant to Section 4.1(a) to Section 4.1(c) above (the “COSMIC BLUE Remaining Securities”). COSMIC BLUE shall have an additional re-allotment right to purchase all but no less than all of the COSMIC BLUE Remaining Securities for a period of thirty ten (3010) days, to purchase for cash calendar days commencing immediately after receipt of the COSMIC BLUE Additional Offer Notice (the “COSMIC BLUE Additional Offer Notice Period”) at a same price equal to and on the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (same terms and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership conditions as specified in the COSMIC BLUE Additional Offer Notice, by notifying the Company as in writing, before the expiration of the date of such notice (treating each Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to it upon conversion, exercise and exchange of all securities (including but not limited to the Shares) held by it on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Purchasers pursuant to this Section 8.1 shall not apply to securities issued: (a) upon conversion of any of the shares of Preferred Stock; (b) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. are limited to additional shares of Common Stock; (c) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; (d) pursuant to a firm commitment underwritten public offering;COSMIC BLUE Additional Offer Notice Period. (e) pursuant Without prejudice to an Offeree’s right to apportion its right of first offer among its Affiliates and itself, the right of first offer set forth in accordance with this Section 2 4.1 may not be assigned or transferred separately without transfer of this Agreement; or (f) as the grant or issuance relevant Preferred Shares except that such right is assignable by an Investor to directors, officers, employees or consultants of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event with respect to the Common Stock) of Common Stock (the "Reserved Shares") pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise Affiliate of such options or the exercise of any options which are outstanding as of the date hereof (which issuance shall dilute all of the Company's stockholders on a pro rata basis) or (ii) the grant or issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance of shares of Common Stock pursuant to the exercise of such options (which issuance shall dilute all of the Company's stockholders on a pro rata basis), pursuant to any qualified or non-qualified stock option plan or agreement, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office with the concurrence of the directors elected by the holders of Preferred StockInvestor.

Appears in 1 contract

Samples: Shareholder Agreement (Spark Education LTD)

Right of Participation. The Company shall(a) Subject to Section 9.1, in the event that at any time prior to any the consummation of a Qualified IPO, CEC (in such capacity, the “Transferring Unitholder”) proposes to Dispose of fifty-one percent (51%) or more of its Class A Units in one transaction or a series of related transactions and (i) such proposed issuance Disposition does not constitute a Permitted Transfer and (ii) CEC does not elect to exercise its right to cause a Company Sale pursuant to Section 9.3, then such Transferring Unitholder shall offer (a “Participation Offer”) to BROG and each other Member designated by the Managers as having rights under this Section 9.5 (a “Participation Member”) to include in the proposed Disposition a number of each Participation Member’s Units equal to the product of (A) a fraction, the numerator of which is the pro rata ownership in the Company on an Adjusted Basis represented by the Units proposed to be included in the Disposition by the Transferring Unitholder, and the denominator of any which is the pro rata ownership in the Company on an Adjusted Basis of its securities all Units owned by the Transferring Unitholder, multiplied by (B) the pro rata ownership in the Company on an Adjusted Basis represented by all of such Participation Member’s Units. (b) The Transferring Unitholder shall give written notice (a “Participation Notice”) to each Participation Member at least ten (10) Business Days prior to the proposed Participation Sale. The Participation Notice shall specify the proposed transferee, the number of Class A Units proposed to be included in the proposed sale under this Section 9.5 (a “Participation Sale”), the purchase price (and if the proposed Disposition is to be wholly or partly for consideration other than debt securities with no equity featurecash, the Participation Notice shall state the amount of cash consideration, if any, and shall describe all non-monetary consideration), offer all other material terms and conditions of such proposed Participation Sale and the place and date on which such proposed Participation Sale is to each Purchaser by written notice be consummated. Each Participation Member who wishes to include Units in the right, for a period of proposed Participation Sale shall so notify the Transferring Unitholder (an “Acceptance Notice”) not more than thirty (30) daysdays after the date of the Participation Notice. (c) The Participation Offer shall be conditioned upon the Transferring Unitholder’s sale of Units pursuant to the transactions contemplated in the Participation Notice with the transferee named therein. If any Participation Member accepts the Participation Offer (a “Participating Unitholder”), the Transferring Unitholder shall, to purchase for cash at a price equal the extent necessary, reduce the Units it otherwise would have included in such proposed Participation Sale so as to permit the price or other consideration for which such securities are Participating Unitholders to be issued, include in the Participation Sale a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to it upon conversion, exercise and exchange of all securities (including but not limited Units corresponding to the Shares) held by it on the date such offer is made, amount that they are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Purchasers entitled include pursuant to this Section 8.1 9.5. (d) In any Disposition subject to Section 9.5, the aggregate consideration to be paid by the acquiring party shall be allocated to each class of Equity Securities, with such allocations determined based on the relative amount that would be distributable to such class of Equity Securities by applying Section 5.1 (including Exhibit 5.1) to such aggregate consideration (giving effect to all distributions actually made pursuant to Section 5.1 through the date of the Disposition). (e) The Acceptance Notice of a Participating Unitholder shall include wire transfer instructions for payment of the purchase price for the Units to be sold in such Participation Sale and shall be accompanied by a limited power-of-attorney authorizing the Transferring Unitholder to transfer its Equity Securities on the terms set forth in the Participation Notice and all other documents required to be executed in connection with such Participation Sale. Delivery of an Acceptance Notice shall constitute an irrevocable acceptance of the Participation Offer by such Participating Unitholder. (f) If, at the end of a sixty (60) day period after delivery of an Acceptance Notice (which sixty (60) day period shall be extended if any of the transactions contemplated by the Participation Offer are subject to regulatory approval until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than ninety (90) days following receipt by the Transferring Unitholder of the Acceptance Notice), the Transferring Unitholder has not completed the transfer of its Equity Securities at a price and on terms and conditions no more favorable to the prospective transferee than the terms and conditions set forth in the Participation Notice, the Transferring Unitholder shall (i) return to each Participating Unitholder the limited power-of-attorney (and all copies thereof) that such Participating Unitholder executed and any other documents in the possession of the Transferring Unitholder executed by the Participating Unitholders in connection with the proposed Participation Sale, and (ii) not conduct any Disposition of its Equity Securities without again complying with this Section 9.5. (g) Concurrently with the consummation of the Participation Sale, the Transferring Unitholder shall (i) notify the Participating Unitholders thereof, (ii) remit to the Participating Unitholders the total consideration for the Equity Securities of the Participating Unitholders transferred pursuant thereto, and (iii) promptly after the consummation of the Participation Sale, furnish such other evidence of the completion and the date of completion of such transfer and the terms thereof as may be reasonably requested by the Participating Unitholders. (h) If at the termination of the Participation Notice Period any other Unitholder shall not apply have delivered an Acceptance Notice, such other Unitholder shall be deemed to securities issuedhave waived its rights under this Section 9.5 with respect to the transfer of its Units pursuant to such Participation Sale. (i) Notwithstanding anything contained in this Section 9.5, there shall be no liability on the part of the Transferring Unitholder to the Participating Unitholders if the Disposition of the Units pursuant to this Section 9.5 is not consummated for whatever reason. (j) Notwithstanding anything contained in this Section 9.5, the rights and obligations of the other Unitholders to participate in a Participation Sale are subject to the following conditions: (ai) upon conversion the Transferring Unitholder and all Participating Unitholders will receive the same form of any of consideration with the shares of Preferred Stockamount per Unit being in accordance with Section 9.5(d); (bii) as a stock dividend no Participating Unitholder shall be required to take any action in connection with any Participation Sale that would cause such Participating Unitholder to spend money or upon any subdivision of shares of Common Stock, provided that the securities issued incur liabilities (other than de minimis expenses or expenses paid by such Participating Unitholder pursuant to such stock dividend or subdivision. are limited to additional shares of Common Stock;clause (iii) below); and (ciii) solely no Unitholder participating therein shall be obligated to pay any expenses incurred in connection with any unconsummated Participation Sale, and each such Unitholder shall be obligated to pay only its pro rata share (based on the aggregate consideration received for Equity Securities Disposed) of expenses incurred in connection with a consummated Participation Sale to the extent such expenses are incurred for the acquisition (whether by merger or otherwise) benefit of all such Unitholders and are not otherwise paid by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; (d) pursuant to a firm commitment underwritten public offering; (e) pursuant to and in accordance with Section 2 of this Agreement; or (f) as the grant or issuance to directors, officers, employees or consultants of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event with respect to the Common Stock) of Common Stock (the "Reserved Shares") pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise of such options or the exercise of any options which are outstanding as of the date hereof (which issuance shall dilute all of the Company's stockholders on a pro rata basis) or (ii) the grant or issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance of shares of Common Stock pursuant to the exercise of such options (which issuance shall dilute all of the Company's stockholders on a pro rata basis), pursuant to any qualified or non-qualified stock option plan or agreement, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office with the concurrence of the directors elected by the holders of Preferred Stockanother Person.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Black Ridge Oil & Gas, Inc.)

Right of Participation. (a) The Company shall, prior to ---------------------- any proposed issuance by the Company of any of its securities (other than debt securities with no equity feature), offer to each the Purchaser by written notice the right, for a period of thirty fifteen (3015) days, to purchase for cash at a price an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such the Purchaser will continue to maintain its same proportionate equity ownership in the Company represented by the Preferred Shares and the Conversion Shares that it owns, if any, as of the date of such notice (treating each the Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to it the Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by it such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Purchasers Purchaser pursuant to this Section 8.1 6.02 shall not apply to securities issued: issued (aA) upon conversion of any of the shares of Preferred Stock; Shares, (bB) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. subdivision are limited to additional shares of Common Stock; , (cC) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule -------- III as being outstanding on the date of this Agreement, (D) solely in --- consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; , (dE) pursuant to a firm commitment underwritten public offering;. The Company's written notice to the Purchaser shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. (The number of shares that the Purchaser is entitled to purchase under this Section 6.02 shall be referred to as its "Pro Rata Share." The total number of shares that the Purchaser is entitled to purchase under this Section 6.02 shall be referred to as "Offered Shares"). (eb) pursuant to and in accordance with Section 2 of this Agreement; or (f) as the grant or issuance to directors, officers, employees or consultants of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event with respect to the Common Stock) of Common Stock (the "Reserved Shares") pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise of such options or the exercise of any options which are outstanding as of the date hereof (which issuance shall dilute all of The Purchaser may accept the Company's stockholders on a pro rata basis) offer as to the full number of securities offered to it or (ii) any lesser number, by written notice thereof given by it to the grant or issuance of additional options Company prior to directors, officers, employees and consultants the expiration of the Corporation or aforesaid fifteen (15) day period, in which event the Company shall sell and the Purchaser shall buy, upon the terms specified, the number of securities agreed to be purchased by Purchaser. The Company shall then be free at any subsidiary, or time prior to ninety (90) days after the issuance date of shares its notice of Common Stock pursuant offer to the exercise Purchaser, to offer and sell to any third party or parties the remainder of such options securities proposed to be issued by the Company (which issuance shall dilute all of including but not limited to the Company's stockholders on a pro rata basissecurities not agreed by the Purchaser to be purchased by it), pursuant at a price and on payment terms no less favorable to any qualified the Company than those specified in such notice of offer to the Purchaser. However, if such third party sale or non-qualified stock option plan or agreementsales are not consummated within such ninety (90) day period, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office Company shall not sell such securities as shall not have been purchased within such period without again complying with the concurrence of the directors elected by the holders of Preferred Stockthis Section 6.02.

Appears in 1 contract

Samples: Series a Convertible Preferred Stock Purchase Agreement (Bailey Co L P)

Right of Participation. The Company shall(a) If one or more of the DLJ Parties, prior to any proposed issuance by the Company of or any of its securities (other than debt securities with no equity feature)Permitted Transferees who have acquired Common Stock without the DLJ Parties making a Participation Offer under this Section 4.2, offer proposes to each Purchaser by written notice the right, for a period of thirty (30) days, to purchase for cash at a price equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) sell shares of Common Stock for value (any such DLJ Party and any Permitted Transferees being referred to herein as a "Transferor") in one transaction or a series of related transactions (such transaction, the "Participation Transaction"), but excluding (i) a sale pursuant to a Qualified IPO or other public offering, and (ii) any sale in which all of the Parties agree to participate, then such Transferor shall offer (the "Participation Offer") to each stockholder Party to include in the proposed sale a number of shares of Common Stock designated by any of the Parties, not to exceed, in respect of any such Party, that number of shares of Common Stock determined by application of the following formula: (A) the number of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue shares of Common Stock to maintain its same proportionate equity ownership be sold by the Transferors in the Company as Participation Transaction multiplied by (B)(i) the number of outstanding shares of Common Stock held by such Party divided by (ii) the number of outstanding shares of Common Stock held by all Parties. (b) The Transferor shall give written notice to each Party of the date of such notice Participation Offer (treating each Purchaserthe "Transferor's Notice") at least 20 days prior to the proposed sale. The Transferor's Notice shall specify the proposed transferee, for the purpose of such computation, as the holder of the number of shares of Common Stock to be sold to such transferee, the amount and type of consideration to be received therefor, and the place and date on which would the sale is to be issuable consummated. Each Party who wishes to it upon conversion, exercise and exchange of all securities (including but not limited to the Shares) held by it on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) include shares of Common Stock and assuming in the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Purchasers pursuant to this Section 8.1 shall not apply to securities issued: (a) upon conversion of any of the shares of Preferred Stock; (b) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. are limited to additional shares of Common Stock; (c) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; (d) pursuant to a firm commitment underwritten public offering; (e) pursuant to and proposed sale in accordance with Section 2 the terms of this Agreement; or (f) as Section 4.2 shall so notify the grant or issuance to directors, officers, employees or consultants Transferor not more than 20 days after the date of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in Transferor's Notice. The Participation Offer shall be conditioned upon the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event with respect to the Common Stock) of Common Stock (the "Reserved Shares") pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) Transferor's sale of shares of Common Stock pursuant to the exercise of such options or transactions contemplated in the exercise of Transferor's Notice with the transferee named therein. If any options which are outstanding as of Party accepts the date hereof (which issuance Participation Offer, the Transferor shall dilute all of reduce to the Company's stockholders on a pro rata basis) or (ii) extent necessary the grant or issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance number of shares of Common Stock it otherwise would have sold in the proposed sale so as to permit other Parties who have accepted the Participation Offer to sell the number of shares of Common Stock that they are entitled to sell under this Section 4.2, and the Transferor and such other Party or Parties shall sell the number of shares of Common Stock specified in the Participation Offer to the proposed transferee in accordance with the terms of such sale set forth in the Transferor's Notice. (c) For purposes of this Section 4.2, the number of shares of Common Stock shall be deemed to include the shares of Common Stock represented by Common Stock Equivalents. Notwithstanding the foregoing, no Common Stock Equivalents shall receive the benefits of this Section 4.2 prior to the time such Common Stock Equivalents are exercisable for or convertible or exchangeable into shares of Common Stock and, in order to obtain the benefits of this Section 4.2, any such Common Stock Equivalents in the form of options, warrants or other securities convertible or exchangeable into or exercisable for shares of Common Stock must be exercised or canceled prior to or simultaneously with the consummation of the sale pursuant to this Section 4.2. (d) Following the exercise consummation of such options (which issuance a Qualified IPO, the provisions of Section 4.2 shall dilute not apply to any sales of shares of Common Stock by a Transferor, in one transaction or a series of related transactions, of less than 10% of all of the Company's stockholders on a pro rata basis), pursuant to any qualified or nonthen-qualified stock option plan or agreement, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority outstanding shares of Common Stock of the members of the Board of Directors of the Corporation then in office with the concurrence of the directors elected by the holders of Preferred StockCompany.

Appears in 1 contract

Samples: Stockholders' Agreement (Basic Energy Services Inc)

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Right of Participation. The Company shall, prior to any proposed issuance by the Company of any of its securities (other than debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) days, to purchase for cash at a price an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to it such Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by it such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Purchasers pursuant to this Section 8.1 5.2 shall not apply to securities issued: issued (aA) upon conversion of any of the shares of Preferred Stock; Shares, (bB) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. subdivision are limited to additional shares of Common Stock; , (cC) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule III as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; , (dE) pursuant to a firm commitment underwritten public offering; , (eF) pursuant to and in accordance with Section 2 the exercise of this Agreement; or (f) as the grant or issuance options to purchase Common Stock granted to directors, officers, employees or consultants of the Company in connection with their service to the Company, or any subsidiary of options and/or restricted to suppliers or other parties as payment for goods or services adjusted to reflect stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock splitsplits, stock dividenddividends, combination, reclassification, recapitalization, reorganization or other similar event combinations of shares and the like with respect to the Common Stock) less the number of Common Stock shares (the "Reserved Shares"as so adjusted) issued pursuant to the Incentive Planssubscriptions, warrants, options, convertible securities, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise of such options or the exercise of any options which are other rights outstanding as of on the date hereof (which issuance shall dilute all of the Company's stockholders on a pro rata basis) or (ii) the grant or issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance of shares of Common Stock pursuant to the exercise of such options (which issuance shall dilute all of the Company's stockholders on a pro rata basis), pursuant to any qualified or non-qualified stock option plan or agreement, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office with the concurrence of the directors elected by the holders of Preferred Stock.this

Appears in 1 contract

Samples: Series a Convertible Preferred Stock Purchase Agreement (New Era of Networks Inc)

Right of Participation. The Company shall, prior to any proposed issuance by the Company of any of its securities (other than the Subsequent Closing Shares and Subsequent Closing Warrants, each as defined in the Purchase Agreement, and debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) days, to purchase for cash at a price an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to it such Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by it such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by all other persons) ("Pro Rata Share"securityholders); provided, however, that the participation rights of the Purchasers pursuant to this Section 8.1 12(b) shall not apply to securities issued: issued (aA) upon conversion of any of the shares of Preferred Stock; Shares, (bB) as a stock dividend or upon any subdivision of shares of Common Stock, provided provided, however, that the securities issued pursuant to such stock dividend or subdivision. subdivision are limited to additional shares of Common Stock; , (cC) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in the Corporation Disclosure Schedules to the Purchase Agreement as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; , (dE) pursuant to a firm commitment underwritten public offering; , (eF) pursuant to and in accordance with Section 2 the exercise of this Agreement; or (f) as the grant or issuance options to purchase Common Stock granted to directors, officers, employees or consultants of the Company or any subsidiary in connection with their service to the Company, pursuant to stock option plans approved by the Board of options and/or restricted stock awards Directors, not to purchase up to 893,927 shares (equitably adjusted exceed in the event of any aggregate the Option Basket (as such term is defined below) (appropriately adjusted to reflect stock splitsplits, stock dividenddividends, combination, reclassification, recapitalization, reorganization or other similar event combinations of shares and the like with respect to the Common Stock) of Common Stock (the "shares exempted by this clause (G) being hereinafter referred to as the “Reserved Employee Shares"”), (H) pursuant to the Incentive Plansin connection with any equipment lease financing, licensing, collaboration, or other joint venture transaction approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees (i) the issuance (or transfer by Gozani to the optionee as such term is defined in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise of such options or the exercise of any options which are outstanding Fourth Amended and Restated Voting Agreement dated as of the date hereof (which issuance shall dilute all the “Voting Agreement”) by and among the Company and the stockholder parties thereto), (I) shares of capital stock of the Company issued and sold to a collaborative partner of the Company in a private placement closing simultaneously with the closing of the Company's stockholders on a pro rata basis) or (ii) the grant or ’s initial public offering, provided that such issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance of shares of Common Stock pursuant to the exercise of such options (which issuance shall dilute all of the Company's stockholders on a pro rata basis), pursuant to any qualified or non-qualified stock option plan or agreement, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans sale is approved by a majority of the members Board of Directors, which majority must include each of the Board Purchaser Nominees, (J) pursuant to the Purchase Agreement or shares issuable upon conversion or exercise of Directors securities issued pursuant to the Purchase Agreement, (K) pursuant to the Xxxxxxx Agency Agreement (as defined in the Purchase Agreement) or (L) upon exercise of any right that was not itself in violation of the Corporation then terms of this Section 12(b). The Company’s written notice to the Purchasers shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. Each Purchaser may accept the Company’s offer as to the full number of securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the aforesaid thirty (30) day period, in office which event the Company shall promptly sell and such Purchaser shall buy, upon the terms specified, the number of securities agreed to be purchased by such Purchaser. The Company shall be free at any time prior to ninety (90) days after the date of its notice of offer to the Purchasers, to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company (including but not limited to the securities not agreed by the Purchasers to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Purchasers. However, if such third party sale or sales are not consummated within such ninety (90) day period, the Company shall not sell such securities as shall not have been purchased within such period without again complying with this Section 12(b). The Purchasers shall have a right of over-subscription such that if any Purchaser fails to accept the Company’s offer as to the full number of securities offered to such Purchaser pursuant to this Section 12(b), the other Purchasers shall, among them, have the right to purchase up to the balance of the offered securities not so purchased. Such right of over-subscription may be exercised by a Purchaser by accepting the Company’s offer as to more than the full amount of securities offered to such Purchaser. If, as a result thereof, such over-subscriptions exceed the total number of securities available in respect of such over-subscription privilege, the oversubscribing Purchasers shall be cut back with respect to their over-subscriptions on a pro rata basis in accordance with the concurrence full number of the directors elected securities offered to each of them by the holders of Preferred StockCompany or as they may otherwise agree among themselves.

Appears in 1 contract

Samples: Stockholder Rights Agreement (Elixir Pharmaceuticals Inc)

Right of Participation. The Company shall, prior (a) If either or both of the IP Parties proposes to any proposed issuance by the Company of any of its securities (other than debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) days, to purchase for cash at a price equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) sell shares of Common Stock of all such securities that are so convertiblefor value, exercisable but excluding (i) a sale which is pursuant to a public offering registered under the Securities Act, (ii) a sale made in accordance with Rule 144 under the Securities Act (or exchangeableany similar successor provision), (iii) a sale to an Affiliate of IP and (iv) any sale in which all of the Parties agree and are permitted to participate, then such Purchaser will continue IP Party shall offer (the "Participation Offer") to maintain its same proportionate equity ownership include in the Company as proposed sale a number of shares of Common Stock designated by any of the date other Parties, not to exceed, in respect of any such notice other Party, the number of shares equal to the product of (treating each Purchaser, for A) the purpose aggregate number of shares of Common Stock to be sold by such computation, as IP Party to the holder proposed transferee and (B) a fraction the numerator of which is equal to the number of shares of Merger Shares held by such other Party and the denominator of which is equal to the number of shares of Common Stock which would be issuable to it upon conversion, exercise and exchange of all securities (including but not limited to the Shares) held by it on all the date such offer is made, that are convertible, exercisable or exchangeable into or for Parties (whether directly or indirectly) excluding shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"persons to whom a Participation Offer is made which are not Merger Shares); provided, however, provided that if the participation rights consideration to be received by such IP Party includes any securities subject to Section 5 of the Purchasers pursuant Securities Act, only Parties who are Accredited Investors shall be entitled to this Section 8.1 include their shares of Common Stock in such sale. The IP Party making the Participation Offer (the "Offering IP Party") shall not apply give written notice to securities issued: (a) upon conversion of any each other Party of the shares of Preferred Stock; Participation Offer (bthe "Tag-Along Notice") as a stock dividend or upon any subdivision at least 15 days prior to the proposed sale. The Tag-Along Notice shall specify the proposed transferee, the number of shares of Common Stock, provided that the securities issued pursuant Stock to be sold to such stock dividend or subdivisiontransferee, the amount and type of consideration to be received therefor, and the place and date on which the sale is to be consummated. are limited Each other Party who wishes to additional include shares of Common Stock; (c) solely Stock in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; (d) pursuant to a firm commitment underwritten public offering; (e) pursuant to and proposed sale in accordance with Section 2 the terms of this Agreement; or (fSection 3.1(a) as shall so notify the grant or issuance to directors, officers, employees or consultants Offering IP Party not more than 10 days after the date of the Company or any subsidiary Tag-Along Notice. The Participation Offer shall be conditioned upon consummation of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event with respect to the Common Stock) of Common Stock (the "Reserved Shares") pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) sale of shares of Common Stock pursuant to the exercise transactions contemplated in the Tag-Along Notice with the transferee named therein. If any Party shall have accepted the Participation Offer, the Offering IP Party shall reduce to the extent necessary the amount of securities it otherwise would have sold in the proposed sale so as to permit the other Parties who have accepted the Participation Offer to sell the number of shares that they are entitled to sell under this Section 3.1(a), and the Offering IP Party and such other Parties shall sell the number of shares specified in the Participation Offer to the proposed transferee in accordance with the terms of such options or sale set forth in the exercise of any options which are outstanding as of the date hereof (which issuance shall dilute all of the Company's stockholders on a pro rata basis) or (ii) the grant or issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance of shares of Common Stock pursuant to the exercise of such options (which issuance shall dilute all of the Company's stockholders on a pro rata basis), pursuant to any qualified or nonTag-qualified stock option plan or agreement, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office with the concurrence of the directors elected by the holders of Preferred StockAlong Notice.

Appears in 1 contract

Samples: Stockholders Agreement (Highlands Insurance Group Inc)

Right of Participation. The Company shall, prior to any proposed issuance by Until the Company has completed a Qualified Public Offering, the Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, for cash or cash equivalents (i) any shares of Common Stock, (ii) any other equity security of its the Company, including, without limitation, shares of Preferred Stock, (iii) any option, warrant or other right to subscribe for, purchase or otherwise acquire any equity security of the Company, or (iv) any Debt Securities, unless in each such case the Company shall have first received an unconditional bona fide offer from a third party to purchase such securities (other than debt securities with no equity feature), the "Offered Securities") and shall have offered to sell the Offered Securities to the Investors as follows: the Company shall offer to each Purchaser by written notice sell to the rightInvestors, for as a period group, that number of thirty (30) daysthe Offered Securities so that the Investors shall retain their then existing equity percentage of the Company on a fully diluted basis. For purposes of making this calculation, the Preferred Stock, and all other outstanding convertible instruments, and options and warrants to purchase for cash at a price equal to the price or other consideration for which such securities are common stock shall be deemed to be issuedconverted or exercised, a number of such securities so that, after giving effect to such issuance (issued and the conversion, exercise and exchange into or for (whether directly or indirectly) outstanding shares of Common Stock of all such securities the Company. The Company shall offer to sell to each Investor (a) that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership in the Company as portion of the date of such notice (treating each Purchaser, for the purpose of such computation, Offered Securities as the holder of the aggregate number of shares of Common Stock which would be equivalents, including the Preferred Stock, then held by or issuable to it upon conversion, exercise and exchange of all securities (including but not limited such Investor bears to the Shares) held by it on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) total number of outstanding shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Purchasers pursuant to this Section 8.1 shall not apply to securities issued: (a) upon conversion of any of the shares of Preferred Stock; (b) as a stock dividend or upon any subdivision of shares of Common StockCompany, provided that the securities issued pursuant to such stock dividend or subdivision. are limited to additional shares of Common Stock; (c) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of plus all or substantially all of the stock or assets of any other entity; (d) pursuant to a firm commitment underwritten public offering; (e) pursuant to and in accordance with Section 2 of this Agreement; or (f) as the grant or issuance to directors, officers, employees or consultants of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event with respect to the Common Stock) of Common Stock (the "Reserved Shares") pursuant to the Incentive Plans, or (i) the issuance (or transfer by Gozani to the optionee in the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the issuable upon exercise of such warrants or options or the exercise upon conversion of any options which are outstanding as convertible securities of the date hereof Company (which issuance shall dilute all the "Basic Amount"); and (b) any additional portion of the Company's stockholders on a pro rata basis) or Offered Securities as such Investors shall indicate it will purchase, but not to exceed the aggregate of all the Basic Amounts should the other Investors subscribe for less than their Basic Amounts (ii) the grant or issuance of additional options to directors, officers, employees and consultants of the Corporation or any subsidiary, or the issuance of shares of Common Stock pursuant to the exercise of such options (which issuance shall dilute all of the Company's stockholders on a pro rata basis"Undersubscription Amount"), pursuant to any qualified or non-qualified stock option plan or agreement, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or at a price and on the other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office with the concurrence of the directors elected terms specified by the holders Company in writing delivered to such Investor (the "Offer"), and the Offer by its terms shall remain open and irrevocable for a period of Preferred Stockten (10) days.

Appears in 1 contract

Samples: Stock Purchase Agreement (Powerwave Technologies Inc)

Right of Participation. The Company shall, prior to any ---------------------- proposed issuance by the Company of any of its securities (other than debt securities with no equity feature), offer to each Purchaser AOL under this Agreement by written notice the right, for a period of thirty twenty (3020) days, to purchase for cash at a price an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser AOL will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each PurchaserAOL, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to it AOL upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by it AOL on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"), but excluding shares of Common Stock issuable to AOL upon its exercise of any right to purchase Common Stock pursuant to the Warrant issued to AOL by the Company in connection with the Interactive Services Agreement; provided, however, that the participation rights of the Purchasers AOL pursuant to this Section 8.1 6.2 shall not apply to securities issued: issued (aA) upon conversion of any of the shares of Preferred Stock; Shares or Common Shares, (bB) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. subdivision are limited to additional shares of Common Stock; , (cC) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule IV as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; , (dE) pursuant to a firm commitment underwritten public offering; , (eF) pursuant to the exercise of options to purchase Common Stock, or as direct stock grants, not to exceed twenty-five percent (25%) of the Company's outstanding shares of capital stock on a fully diluted basis, that were granted by the Board of Directors and approved by the Compensation Committee (as defined in accordance with Section 2 of this Agreement; or (f6.19) as the grant or issuance under any Company stock option plan to directors, officers, employees or consultants of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event connection with respect their service to the Common StockCompany (the shares exempted by this clause (F) of Common Stock (being hereinafter referred to as the "Reserved Employee Shares"), and (G) pursuant to the Incentive Plans, exercise by Thomson of its preemptive rights to purchase securities described in Subsections (D) or (iF) above under the issuance (or transfer Thomson Agreement. The Company's written notice to AOL shall describe the securities proposed to be issued by Gozani to the optionee in Company and specify the case of options granted pursuant to the 1996 Incentive Plan) of shares of Common Stock pursuant to the exercise of such options or the exercise of any options which are outstanding as of the date hereof (which issuance shall dilute all of number, price and payment terms. AOL may accept the Company's stockholders on a pro rata basis) offer as to the full number of securities offered to it or (ii) any lesser number, by written notice thereof given by it to the grant or issuance of additional options Company prior to directors, officers, employees and consultants the expiration of the Corporation aforesaid twenty (20) day period, in which event the Company shall promptly sell and AOL shall buy, upon the terms specified, the number of securities agreed to be purchased by AOL. The Company shall be free at any time prior to one hundred twenty (120) days after the date of its notice of offer to AOL, to offer and sell to any third party or any subsidiary, or parties the issuance remainder of shares of Common Stock pursuant such securities proposed to be issued by the Company (including but not limited to the exercise of such options (which issuance shall dilute all of the Company's stockholders on a pro rata basissecurities not agreed by AOL to be purchased by it), pursuant at a price and on payment terms no less favorable to any qualified the Company than those specified in such notice of offer to AOL. However, if such third party sale or non-qualified stock option plan or agreementsales are not consummated within such one hundred twenty (120) day period, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office Company shall not sell such securities as shall not have been purchased within such period without again complying with the concurrence of the directors elected by the holders of Preferred Stockthis Section 6.2.

Appears in 1 contract

Samples: Series E 1 Convertible Preferred Stock Purchase Agreement (CCBN Com)

Right of Participation. The Company shall, prior to any ---------------------- proposed issuance by the Company of any of its securities (other than debt securities with no equity feature), offer to each Major Purchaser under this Agreement by written notice the right, for a period of thirty twenty (3020) days, to purchase for cash at a price an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Major Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Major Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to it such Major Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by it such Major Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other persons) ("Pro Rata Share"); provided, however, that the participation rights of the Major Purchasers pursuant to this Section 8.1 6.2 shall not apply to securities issued: issued (aA) upon conversion of any of the shares of Preferred Stock; Shares or Common Shares, (bB) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision. subdivision are limited to additional shares of Common Stock; , (cC) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule IV as being outstanding ----------- on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity; , (dE) pursuant to a firm commitment underwritten public offering; , (eF) pursuant to the exercise of options to purchase Common Stock, or as direct stock grants, not to exceed twenty-five percent (25%) of the Company's outstanding shares of capital stock on a fully diluted basis, that were granted by the Board of Directors and approved by the Compensation Committee (as defined in accordance with Section 2 of this Agreement; or (f6.19) as the grant or issuance under any Company stock option plan to directors, officers, employees or consultants of the Company or any subsidiary of options and/or restricted stock awards to purchase up to 893,927 shares (equitably adjusted in the event of any stock split, stock dividend, combination, reclassification, recapitalization, reorganization or other similar event connection with respect their service to the Common StockCompany (the shares exempted by this clause (F) of Common Stock (being hereinafter referred to as the "Reserved Employee Shares"), and (G) pursuant to the Incentive Plans, exercise by Thomson of its preemptive rights to purchase securities described in Subsections (D) or (iF) above under the issuance (or transfer by Gozani Thomson Agreement. The Company's written notice to the optionee in Major Purchasers shall describe the case of options granted pursuant securities proposed to be issued by the 1996 Incentive Plan) of shares of Common Stock pursuant to Company and specify the exercise of such options or the exercise of any options which are outstanding as of the date hereof (which issuance shall dilute all of number, price and payment terms. Each Major Purchaser may accept the Company's stockholders on a pro rata basis) offer as to the full number of securities offered to it or (ii) any lesser number, by written notice thereof given by it to the grant or issuance of additional options Company prior to directors, officers, employees and consultants the expiration of the Corporation or aforesaid twenty (20) day period, in which event the Company shall promptly sell and such Major Purchaser shall buy, upon the terms specified, the number of securities agreed to be purchased by such Major Purchaser. The Company shall be free at any subsidiary, or time prior to one hundred twenty (120) days after the issuance date of shares its notice of Common Stock pursuant offer to the exercise Major Purchasers, to offer and sell to any third party or parties the remainder of such options securities proposed to be issued by the Company (which issuance shall dilute all of including but not limited to the Company's stockholders on a pro rata basissecurities not agreed by the Major Purchasers to be purchased by them), pursuant at a price and on payment terms no less favorable to any qualified the Company than those specified in such notice of offer to the Major Purchasers. However, if such third party sale or non-qualified stock option plan or agreementsales are not consummated within such one hundred twenty (120) day period, stock purchase plan, employee stock ownership plan, restricted stock plan, stock appreciation right (SAR) plan, stock purchase agreement, stock restriction agreement, consulting agreement or other agreements or plans approved by a majority of the members of the Board of Directors of the Corporation then in office Company shall not sell such securities as shall not have been purchased within such period without again complying with the concurrence of the directors elected by the holders of Preferred Stockthis Section 6.2.

Appears in 1 contract

Samples: Series D Convertible Preferred Stock Purchase Agreement (CCBN Com)

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