Right to Participate in Future Financing. Subject to the exceptions described below, each of the Company and its Subsidiaries agrees that during the period beginning on the date hereof and ending on the first date following the Initial Closing on which no Note remains outstanding, neither the Company nor its Subsidiaries will (x) contract with any party for any debt or equity financing (including any debt financing with an equity component), or (y) issue any debt or equity securities of the Company or any Subsidiary or securities convertible, exchangeable or exercisable into or for debt or equity securities of the Company or any Subsidiary (including debt securities with an equity component) (each, a “Future Offering”), unless, after it has received an offer regarding a Future Offering that it has a bona fide intention to accept, it shall have first delivered to each Buyer (or the designee appointed by such Buyer) written notice (the “Future Offering Notice”) describing the Future Offering in reasonable detail and providing each Buyer an option (the “Buyer Purchase Option”) to purchase up to 25% of such Buyer’s Allocation Percentage (such 25% of such Buyer’s Allocation Percentage being referred to herein as such Buyer’s “Participation Percentage”) of the total amount of securities to be issued in such Future Offering (the limitations referred to in this and the preceding sentence are collectively referred to as the “Capital Raising Limitations”) and on the same terms as offered to the other investors and participants in such Future Offering. Upon the written request of any Buyer made within five (5) Business Days after its receipt of a Future Offering Notice (an “Additional Information Request”), the Company shall provide the Buyers with such additional information regarding the proposed Future Offering, including terms and conditions and use of proceeds thereof, as any Buyer shall reasonably request. A Buyer may exercise its Buyer Purchase Option by delivering written notice to the Company within five (5) Business Days after the later of (i) such Buyer’s receipt of a Future Offering Notice or (ii) such Buyer’s receipt of all of the information reasonably requested by the Buyer in an Additional Information Request (the “Buyer Purchase Notice Date”), which notice shall state the quantity or percentage of securities being offered in the Future Offering that such Buyer will purchase, up to its Participation Percentage, and that quantity or percentage of securities (if any) it is willing to purchase in excess of its Allocation Percentage (such Buyer’s “Over-allotment Amount”). In the event that one or more Buyers fail to elect to purchase up to each such Buyer’s Allocation Percentage, then each of the Buyers that have indicated a willingness to purchase a Buyer Over-allotment Amount shall be entitled to purchase an amount of the securities subject to the Buyer Purchase Option that such Buyer or Buyers have failed to elect to purchase (the “Unpurchased Securities”) equal to the lesser of (x) the Buyer Over-allotment Amount of such Buyer, and (y) the product of (I) such Buyer’s Allocation Percentage, and (II) the aggregate amount of such Unpurchased Securities subject to the Buyer Purchase Option. The Company shall have sixty (60) days following the Buyer Purchase Notice Date to sell the securities of the Future Offering (other than the securities to be purchased by the Buyers pursuant to this Section 4(t)), upon terms and conditions no more favorable to the purchasers thereof than specified in the Future Offering
Appears in 1 contract
Right to Participate in Future Financing. Subject to the exceptions described below, each of the Company and its Subsidiaries agrees that during the period beginning on the date hereof and ending on the earlier of (i) the fifth (5th) anniversary of the Closing and (ii) three (3) years after the first date following the Initial Closing on which no Note remains Notes or 2004 Notes remain outstanding, neither the Company nor its Subsidiaries will (x) contract with any party for any debt or equity financing (including any debt financing with an equity component), or (y) issue any debt or equity securities of the Company or any Subsidiary or securities convertible, exchangeable or exercisable into or for debt or equity securities of the Company or any Subsidiary (including debt securities with an equity component) or (eachz) engage in “farm-out” financing transactions or similar transactions which do not have operating obligations by the financing party as a material component, in any form (a “Future Offering”), unless, after it has received an offer regarding a Future Offering that it has a bona fide intention to accept, ) unless it shall have first delivered to each Buyer (or the its designee appointed by such Buyer) Buyer written notice (the “Future Offering Notice”) describing generally the proposed Future Offering in reasonable detail and providing each Buyer an option (the “Buyer Purchase Option”) to purchase up to 25% of such Buyer’s Allocation its Aggregate Percentage (such 25as defined below) of 100% of such Buyer’s Allocation Percentage being referred to herein as such Buyer’s “Participation Percentage”) of the total amount of securities to be issued in such Future Offering (the limitations referred to in this and the preceding sentence are collectively referred to as the “Capital Raising Limitations”). No Future Offering Notice shall contain any material nonpublic information regarding the Company or any of its Subsidiaries. For purposes of this Section 4(h), “Aggregate Percentage” shall mean the percentage obtained by dividing (i) and the aggregate principal amount of Notes initially issued to such Buyer on the same terms as offered Closing Date by (ii) the aggregate principal amount of Notes initially issued to all the other investors and participants in such Future OfferingBuyers on the Closing Date. Upon the written request of any Buyer made within five (5) Business Days after its receipt of a Future Offering Notice (an “Additional Information Request”)Buyer, the Company shall provide the Buyers such Buyer with such additional information regarding the proposed Future Offering, including the buyer, terms and conditions and use of proceeds thereof, as any such Buyer shall reasonably so request. A Buyer may can exercise its Buyer Purchase Option option to participate in a Future Offering by delivering written notice to the Company within five (5) Business Days after the later of (i) such Buyer’s receipt of a Future Offering Notice or (ii) such Buyer’s receipt of all of the information reasonably requested by the Buyer in an Additional Information Request (the “Buyer Purchase Notice Date”)Notice, which notice shall state the quantity or percentage of securities being offered in the Future Offering that such Buyer will purchase, up to its Participation Aggregate Percentage, and that quantity or percentage of securities (if any) it is willing to purchase in excess of its Allocation Percentage (such Buyer’s “Over-allotment Amount”)Aggregate Percentage. In the event that one or more Buyers fail to elect to purchase up to each such Buyer’s Allocation Aggregate Percentage, 60370812 then each of the Buyers Buyer which has indicated that have indicated a willingness it is willing to purchase a Buyer Over-allotment Amount number of securities in such Future Offering in excess of its Aggregate Percentage shall be entitled to purchase an amount its pro rata portion (determined in the same manner as described in the preceding sentence) of the securities subject to in the Buyer Purchase Option that such Buyer Future Offering which one or more of the Buyers have failed not elected to purchase. In the event the Buyers fail to elect to purchase (participate fully in the “Unpurchased Securities”) equal to Future Offering within the lesser of (x) periods described in this Section 4(h), the Buyer Over-allotment Amount of such Buyer, and (y) the product of (I) such Buyer’s Allocation Percentage, and (II) the aggregate amount of such Unpurchased Securities subject to the Buyer Purchase Option. The Company shall have sixty (60) 60 days following the Buyer Purchase Notice Date thereafter to sell the securities of in the Future Offering (other than the securities to be purchased by that the Buyers pursuant did not elect to this Section 4(t))purchase, upon terms and conditions no more favorable to the purchasers thereof than specified in the Future OfferingOffering Notice. In the event the Company has not sold such securities of the Future Offering within such 60-day period, the Company shall not thereafter issue or sell such securities without first offering such securities to the Buyers in the manner provided in this Section 4(h). The Capital Raising Limitations shall not apply to (i) any transaction involving the Company’s issuances of securities (A) as consideration in a merger or consolidation (the primary purpose or material result of which is not to raise or obtain equity capital or cash), (B) in connection with any strategic partnership or joint venture (the primary purpose or material result of which is not to raise or obtain equity capital or cash), or (C) as consideration for the acquisition of a business, product, license or other assets by the Company (the primary purpose or material result of which is not to raise or obtain equity capital or cash), (ii) the issuance solely of Common Stock in a fixed price, firm commitment, public offering underwritten by a nationally recognized investment bank which has net proceeds to the Company of at least $75,000,000 (excluding equity lines, “registered direct” offerings and “at-the-market” offerings or similar transactions), (iii) the issuance of securities upon exercise or conversion of the Company’s options, warrants or other convertible securities outstanding as of the date hereof and listed on Schedule 3(c) hereto, provided such securities are not amended or modified on or after the date hereof and provided that the conversion price, exchange price, exercise price or other purchase price is not reduced, adjusted or otherwise modified and the number of shares issued or issuable is not increased (whether by operation of law or in accordance with the relevant governing documents or otherwise) on or after the date hereof, and (iv) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option plan, restricted stock plan or stock purchase plan approved by the Company’s Board of Directors and shareholders and for the benefit of the Company’s employees or directors. No Buyer shall be required to participate or exercise its right of participation with respect to a particular Future Offering in order to exercise its right of participation with respect to later Future Offerings.
Appears in 1 contract
Right to Participate in Future Financing. Subject to the exceptions described below, each of the Company and its Subsidiaries agrees that during the period beginning on the date hereof and ending on the later of (i) the third (3rd) anniversary of the Closing and (ii) sixty (60) days after the first date following the Initial Closing on which no Note remains Notes remain outstanding, neither the Company nor its shall not, and shall cause each of the Subsidiaries will not to (x) contract with any party for any debt or equity financing (including any debt financing with an equity component), or (y) issue any debt or equity securities of the Company or any Subsidiary or securities convertible, exchangeable or exercisable into or for debt or equity securities of the Company or any Subsidiary (including debt securities with an equity component) or (eachz) engage in “farm-out” financing transactions or similar transactions which do not have operating obligations by the financing party as a material component, in any form (a “Future Offering”), unless, after it such Person has received an offer regarding a Future Offering that it has a bona fide intention to accept, it such Person shall have first delivered to each Buyer (or the designee designees appointed by such Buyerrespective Buyers) written notice (the “Future Offering Notice”) describing the Future Offering in reasonable detail reporting that it has received and is prepared to accept such offer and providing each such Buyer an option (the “Buyer Purchase Option”) to purchase up to twenty-five percent (25% of such Buyer’s Allocation Percentage (such 25% of such Buyer’s Allocation Percentage being referred to herein as such Buyer’s “Participation Percentage”%) of the total amount of securities securities, rights or interests to be issued or sold in such Future Offering Offering, multiplied by such Buyer’s Allocation Percentage (the limitations referred to in this and the preceding sentence are collectively referred to as the “Capital Raising Limitations”) and on ). No Future Offering Notice shall contain any material non-public information regarding the same terms as offered to Company or any of the other investors and participants in such Future OfferingSubsidiaries. Upon the written request of any Buyer made within five (5) Business Days after its receipt of a Future Offering Notice (an “Additional Information Request”), the Company shall provide the Buyers each Buyer with such additional information regarding the proposed Future Offering, including the name of the purchaser, and the terms and conditions and use of proceeds thereof, as any such Buyer shall reasonably request. A Each Buyer may exercise its Buyer Purchase Option by delivering written notice (the “Buyer Purchase Notice Date”) to the Company within five (5) Business Days after the later of (i) such the Buyer’s receipt of a Future Offering Notice or (ii) such the Buyer’s receipt of all of the information reasonably requested by the Buyer in an Additional Information Request (the “Buyer Purchase Notice Date”)Request, which notice shall state the quantity or percentage of securities securities, rights or interests being offered in the Future Offering that such the Buyer will purchase, up to its Participation Percentage, and that quantity or percentage of securities (if any) it is willing to purchase in excess of its Allocation Percentage (such Buyer’s “Over-allotment Amount”). In the event that one or more Buyers fail to elect to purchase up to each such Buyer’s Allocation Percentage, then each of the Buyers that have indicated a willingness to purchase a Buyer Over-allotment Amount shall be entitled to purchase an amount of the securities subject to the Buyer Purchase Option that such Buyer or Buyers have failed to elect to purchase (the “Unpurchased Securities”) equal to the lesser of (x) the Buyer Over-allotment Amount of such Buyer, and (y) the product of (I) such Buyer’s Allocation Percentage, and (II) the aggregate amount of such Unpurchased Securities subject to the Buyer Purchase Option. The Company or the Subsidiary, as appropriate, shall have sixty (60) days following the Buyer Purchase Notice Date to sell the securities securities, rights or interests of the Future Offering (other than the securities securities, rights or interests to be purchased by the Buyers pursuant to this Section 4(t5(t)), upon terms and conditions no more favorable to the purchasers thereof than specified in the Future Offering Notice. The exercise of a Buyer Purchase Option shall be contingent upon, and contemporaneous with, the consummation of such Future Offering; provided, that notwithstanding a Buyer’s exercise of the Buyer Purchase Option with respect to a particular Future Offering, the determination to complete any such Future Offering shall be within the Company’s sole discretion. In connection with such consummation, each Buyer (if it exercises its Buyer Purchase Option) shall deliver to the Company duly and properly executed originals of any documents reasonably required by the Company to effectuate such Future Offering, together with payment of the purchase price for the securities, rights or interests being purchased by such Buyer in such Future Offering, and the Company or the Subsidiary, as appropriate, shall promptly issue to such Buyer the securities, rights or interests purchased thereby. In the event the Company or the Subsidiary, as appropriate, has not sold such securities, rights or interests of the Future Offering within such 60-day period, then the Company and the Subsidiaries shall not thereafter issue or sell such securities, rights or interests or any other securities, rights or interests subject to this Section 5(t) without first offering such securities, rights or interests to such Buyer in the manner provided in this Section 5(t). Such Buyer shall not be required to participate or exercise its right of participation with respect to a particular Future Offering in order to exercise its right of participation with respect to later Future Offerings. The Capital Raising Limitations shall not apply to (i) any transaction involving the Company’s issuances of securities, rights or interests (A) as consideration in a merger or consolidation (the primary purpose or material result of which is not to raise or obtain equity capital or cash), (B) in connection with any strategic partnership or joint venture (the primary purpose or material result of which is not to raise or obtain equity capital or cash), or (C) as consideration for the acquisition of a business, product, license or other assets by the Company (the primary purpose or material result of which is not to raise or obtain equity capital or cash) or (ii) Exempted Issuances (as defined in the Warrants). 50
Appears in 1 contract
Samples: Securities Purchase Agreement (Sonterra Resources, Inc.)
Right to Participate in Future Financing. Subject to the exceptions described below, each of the Company and its Subsidiaries agrees that during the period beginning on the date hereof and ending on the later of (i) the six-month anniversary of the Closing and (ii) 60 days after the first date following the Initial Closing on which no Note remains outstanding, neither the Company nor its Subsidiaries will (x) contract with any party for any debt or equity financing (including any debt financing with an equity component), or (y) issue any debt or equity securities of the Company or any Subsidiary or securities convertible, exchangeable or exercisable into or for debt or equity securities of the Company or any Subsidiary (including debt securities with an equity component) or (eachz) engage in “farm-out” financing transactions or similar transactions which do not have operating obligations by the financing party as a material component, in any form (a “Future Offering”), unless, after it has received an offer regarding a Future Offering that it has a bona fide intention to accept, it shall have first delivered to each Buyer (or the its designee appointed by such Buyer) written notice (the “Future Offering Notice”) describing the Future Offering in reasonable detail reporting that it has received and is prepared to accept such offer and providing each Buyer an option (the “Buyer Purchase Option”) to purchase up to 25% of such Buyer’s Allocation Percentage (such 25% of such Buyer’s Allocation Percentage being referred to herein as such Buyer’s “Participation Percentage”) of the total amount of securities to be issued in such Future Offering (the limitations referred to in this and the preceding sentence are collectively referred to as the “Capital Raising Limitations”) and on ). No Future Offering Notice shall contain any material non-public information regarding the same terms as offered to the other investors and participants in such Future OfferingCompany or any of its Subsidiaries. Upon the written request of any Buyer made within five (5) Business Days after its receipt of a Future Offering Notice (an “Additional Information Request”), the Company shall provide the Buyers Buyer with such additional information regarding the proposed Future Offering, including terms and conditions and use of proceeds thereof, as any Buyer shall reasonably request. A Buyer may exercise its Buyer Purchase Option by delivering written notice to the Company within five (5) Business Days after the later of (i) such Buyer’s receipt of a Future Offering Notice or (ii) such Buyer’s receipt of all of the information reasonably requested by the Buyer in an Additional Information Request (the “Buyer Purchase Notice Date”), which notice shall state the quantity or percentage of securities being offered in the Future Offering that such Buyer will purchase, up to its Participation Percentage, and that quantity or percentage of securities (if any) it is willing to purchase in excess of its Allocation Percentage (such Buyer’s “Over-allotment Amount”). In the event that one or more Buyers fail to elect to purchase up to each such Buyer’s Allocation Percentage, then each of the Buyers that have indicated a willingness to purchase a Buyer Over-allotment Amount shall be entitled to purchase an amount of the securities subject to the Buyer Purchase Option that such Buyer or Buyers have failed to elect to purchase (the “Unpurchased Securities”) equal to the lesser of (x) the Buyer Over-allotment Amount of such Buyer, and (y) the product of (I) such Buyer’s Allocation Percentage, and (II) the aggregate amount of such Unpurchased Securities subject to the Buyer Purchase Option. The Company shall have sixty (60) 60 days following the Buyer Purchase Notice Date to sell the securities of the Future Offering (other than the securities to be purchased by the Buyers Buyer pursuant to this Section 4(t)9.16), upon terms and conditions no more favorable to the purchasers thereof than specified in the Future Offering Notice. The exercise of the Buyer Purchase Option shall be contingent upon, and contemporaneous with, the consummation of such Future Offering. In connection with such consummation, Buyer (if it exercises the Buyer Purchase Option) shall deliver to the Company duly and properly executed originals of any documents reasonably required by the Company, and in form and substance reasonably satisfactory to Buyer, to effectuate such Future Offering together with payment of the purchase price for the securities being purchased by Buyer in such Future Offering, and the Company shall promptly issue to Buyer the securities purchased thereby. In the event the Company has not sold such securities of the Future Offering within such 60-day period, the Company shall not thereafter issue or sell such securities or any other securities subject to this Section 9.16 without first offering such securities to Buyer in the manner provided in this Section 9.16. Buyer shall not be required to participate or exercise its right of participation with respect to a particular Future Offering in order to exercise its right of participation with respect to later Future Offerings. The Capital Raising Limitations shall not apply to (i) any transaction involving the Company’s issuances of securities (A) as consideration in a merger or consolidation (the primary purpose or material result of which is not to raise or obtain equity capital or cash), (B) in connection with any strategic partnership or joint venture (the primary purpose or material result of which is not to raise or obtain equity capital or cash), or (C) as consideration for the acquisition of a business, product, license or other assets by the Company (the primary purpose or material result of which is not to raise or obtain equity capital or cash) or (ii) Exempted Issuances (as defined in the Warrant).
Appears in 1 contract
Samples: Securities Purchase Agreement (Gulf Western Petroleum Corp)
Right to Participate in Future Financing. Subject to the exceptions described below, each of the Company and its Subsidiaries agrees that during the period beginning on the date hereof and ending on the first date following the Initial Closing on which no Note remains outstanding, neither the Company nor its Subsidiaries will (x) contract with any party for any debt or equity financing (including any debt financing with an equity component), or (y) issue any debt or equity securities of the Company or any such Subsidiary or securities convertible, exchangeable or exercisable into or for debt or equity securities of the Company or any such Subsidiary (including debt securities with an equity component) (each, a “Future Offering”), unless, after it has received an offer regarding a Future Offering that it has a bona fide intention to accept, it shall have first delivered to each Buyer (or the designee appointed by such Buyer) written notice (the “Future Offering Notice”) describing the Future Offering in reasonable detail and providing each Buyer an option (the “Buyer Purchase Option”) to purchase up to 25% of such Buyer’s Allocation Percentage (such 25% of such Buyer’s Allocation Percentage being referred to herein as such Buyer’s “Participation Percentage”) of the total amount of securities to be issued in such Future Offering (the limitations referred to in this and the preceding sentence are collectively referred to as the “Capital Raising Limitations”) and on ). No Future Offering Notice shall contain any material non-public information regarding the same terms as offered to the other investors and participants in such Future OfferingCompany or any of its Subsidiaries. Upon the written request of any Buyer made within five (5) Business Days after its receipt of a Future Offering Notice (an “Additional Information Request”), the Company shall provide the Buyers with such additional information regarding the proposed Future Offering, including terms and conditions and use of proceeds thereof, as any Buyer shall reasonably request. A Buyer may exercise its Buyer Purchase Option by delivering written notice to the Company within five (5) Business Days after the later of (i) such Buyer’s receipt of a Future Offering Notice or (ii) such Buyer’s receipt of all of the information reasonably requested by the Buyer in an Additional Information Request (the “Buyer Purchase Notice Date”), which notice shall state the quantity or percentage of securities being offered in the Future Offering that such Buyer will purchase, up to 25% of its Participation Percentage, and that quantity or percentage of securities (if any) it is willing to purchase in excess of its Allocation Percentage (such Buyer’s “Over-allotment Amount”). In the event that one or more Buyers fail to elect to purchase up to each such Buyer’s Allocation Aggregate Percentage, then each of the Buyers that have indicated a willingness to purchase a Buyer Over-allotment Amount shall be entitled to purchase an amount of the securities subject to the Buyer Purchase Option that such Buyer or Buyers have failed to elect to purchase (the “Unpurchased Securities”) equal to the lesser of (x) the Buyer Over-allotment Amount of such Buyer, and (y) the product of (I) such Buyer’s Allocation Percentage, and (II) the aggregate amount of such Unpurchased Securities subject to the Buyer Purchase Option. The Company shall have sixty (60) 90 days following the Buyer Purchase Notice Date to sell the securities of the Future Offering (other than the securities to be purchased by the Buyers pursuant to this Section 4(t4(w)), upon terms and conditions no more favorable to the purchasers thereof than specified in the Future Offering Notice. The exercise of the Buyer Purchase Option shall be contingent upon, and contemporaneous with, the consummation of such Future Offering. In connection with such consummation, each Buyer that exercises the Buyer Purchase Option shall deliver to the Company duly and properly executed originals of any documents reasonably required by the Company to effectuate such Future Offering together with payment of the purchase price for the securities being purchased by such Buyer in such Future Offering, and the Company shall promptly issue to such Buyer the securities purchased thereby. In the event the Company has not sold such securities of the Future Offering within such 90-day period, the Company shall not thereafter issue or sell such securities or any other securities subject to this Section 4(w) without first offering such securities to the Buyers in the manner provided in this Section 4(w). No Buyer shall be required to participate or exercise its right of participation with respect to a particular Future Offering in order to exercise its right of participation with respect to later Future Offerings. The Capital Raising Limitations shall not apply to (i) any transaction involving the Company’s issuances of securities (A) as consideration in a merger or consolidation (the primary purpose or material result of which is not to raise or obtain equity capital or cash), (B) in connection with any strategic partnership or joint venture (the primary purpose or material result of which is not to raise or obtain equity capital or cash), or (C) as consideration for the acquisition of a business, product, license or other assets by the Company (the primary purpose or material result of which is not to raise or obtain equity capital or cash), (ii) the issuance of securities upon exercise or conversion of the Company’s Options or Convertible Securities outstanding as of the date hereof and listed on Schedule 3(c), provided that such securities are not amended or modified on or after the date hereof and provided, further, that the conversion price, exchange price, exercise price or other purchase price is not reduced, adjusted or otherwise modified and the number of shares issued or issuable is not increased (whether by operation of law or in accordance with the relevant governing documents or otherwise) on or after the date hereof, (iii) the grant of additional options, or the issuance of other securities, under any of the Company’s stock option, restricted stock or employee stock purchase plan existing on the date of this Agreement and described on Schedule 3(c), and (iv) the incurrence of indebtedness by any of the Excluded Subsidiaries pursuant to Warehouse Documents.
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Right to Participate in Future Financing. Subject to the exceptions described below, each of the Company and its Subsidiaries agrees that during the period beginning on the date hereof and ending on the first date following the Initial Closing on which no Note remains outstanding, neither the Company nor its Subsidiaries will (x) contract with any party for any debt or equity financing (including any debt financing with an equity component), or (y) issue any debt or equity securities of the Company or any Subsidiary or securities convertible, exchangeable or exercisable into or for debt or equity securities of the Company or any Subsidiary (including debt securities with an equity component) (each, a “Future Offering”), unless, after it has received an offer regarding a Future Offering that it has a bona fide intention to accept, it shall have first delivered to each Buyer (or the designee appointed by such Buyer) written notice (the “Future Offering Notice”) describing the Future Offering in reasonable detail and providing each Buyer an option (the “Buyer Purchase Option”) to purchase up to 25% of such Buyer’s Allocation Percentage (such 25% of such Buyer’s Allocation Percentage being referred to herein as such Buyer’s “Participation Percentage”) of the total amount of securities to be issued in such Future Offering (the limitations referred to in this and the preceding sentence are collectively referred to as the “Capital Raising Limitations”) and on the same terms as offered to the other investors and participants in such Future Offering. Upon the written request of any Buyer made within five (5) Business Days after its receipt of a Future Offering Notice (an “Additional Information Request”), the Company shall provide the Buyers with such additional information regarding the proposed Future Offering, including terms and conditions and use of proceeds thereof, as any Buyer shall reasonably request. A Buyer may exercise its Buyer Purchase Option by delivering written notice to the Company within five (5) Business Days after the later of (i) such Buyer’s receipt of a Future Offering Notice or (ii) such Buyer’s receipt of all of the information reasonably requested by the Buyer in an Additional Information Request (the “Buyer Purchase Notice Date”), which notice shall state the quantity or percentage of securities being offered in the Future Offering that such Buyer will purchase, up to its Participation Percentage, and that quantity or percentage of securities (if any) it is willing to purchase in excess of its Allocation Percentage (such Buyer’s “Over-allotment Amount”). In the event that one or more Buyers fail to elect to purchase up to each such Buyer’s Allocation Percentage, then each of the Buyers that have indicated a willingness to purchase a Buyer Over-allotment Amount shall be entitled to purchase an amount of the securities subject to the Buyer Purchase Option that such Buyer or Buyers have failed to elect to purchase (the “Unpurchased Securities”) equal to the lesser of (x) the Buyer Over-allotment Amount of such Buyer, and (y) the product of (I) such Buyer’s Allocation Percentage, and (II) the aggregate amount of such Unpurchased Securities subject to the Buyer Purchase Option. The Company shall have sixty (60) days following the Buyer Purchase Notice Date to sell the securities of the Future Offering (other than the securities to be purchased by the Buyers pursuant to this Section 4(t)), upon terms and conditions no more favorable to the purchasers thereof than specified in the Future Offering Notice. The exercise of the Buyer Purchase Option shall be contingent upon, and contemporaneous with, the consummation of such Future Offering. In connection with such consummation, each Buyer that exercises the Buyer Purchase Option shall deliver to the Company duly and properly executed originals of any documents reasonably required by the Company to effectuate such Future Offering together with payment of the purchase price for the securities being purchased by such Buyer in such Future Offering, and the Company shall promptly issue to such Buyer the securities purchased thereby. In the event the Company has not sold such securities of the Future Offering within such sixty (60) day period, the Company shall not thereafter issue or sell such securities or any other securities subject to this Section 4(t) without first offering such securities to the Buyers in the manner provided in this Section 4(t). Any Buyer that fails to exercise its full Participation Percentage with respect to a particular Future Offering shall lose its right of participation with respect to later Future Offerings. The Capital Raising Limitations shall not apply to (i) any transaction involving the Company’s issuances of securities (A) as consideration in a merger or consolidation (the primary purpose or material result of which is not to raise or obtain equity capital or cash), (B) in connection with any strategic partnership or joint venture (the primary purpose or material result of which is not to raise or obtain equity capital or cash), or (C) as consideration for the acquisition of a business, product, license or other assets by the Company (the primary purpose or material result of which is not to raise or obtain equity capital or cash), (ii) the issuance of securities upon exercise or conversion of the Company’s Options or Convertible Securities outstanding as of the date hereof, provided that such securities are not amended or modified on or after the date hereof and provided, further, that the conversion price, exchange price, exercise price or other purchase price is not reduced, adjusted or otherwise modified and the number of shares issued or issuable is not increased (whether by operation of law or in accordance with the relevant governing documents or otherwise) on or after the date hereof, and (iii) the grant of additional options, or the issuance of other securities, under any Company Equity Plan.
Appears in 1 contract
Samples: Securities Purchase Agreement (Averion International Corp.)
Right to Participate in Future Financing. Subject to the exceptions described below, each of the Company and its Subsidiaries agrees that during the period beginning on the date hereof and ending on the later of (i) the third (3rd) anniversary of the Closing and (ii) sixty (60) days after the first date following the Initial Closing on which no Note remains Notes remain outstanding, neither the Company nor its shall not, and shall cause each of the Subsidiaries will not to (x) contract with any party for any debt or equity financing (including any debt financing with an equity component), or (y) issue any debt or equity securities of the Company or any Subsidiary or securities convertible, exchangeable or exercisable into or for debt or equity securities of the Company or any Subsidiary (including debt securities with an equity component) or (eachz) engage in “farm-out” financing transactions or similar transactions which do not have operating obligations by the financing party as a material component, in any form (a “Future Offering”), unless, after it such Person has received an offer regarding a Future Offering that it has a bona fide intention to accept, it such Person shall have first delivered to each Buyer (or the designee designees appointed by such Buyerrespective Buyers) written notice (the “Future Offering Notice”) describing the Future Offering in reasonable detail reporting that it has received and is prepared to accept such offer and providing each such Buyer an option (the “Buyer Purchase Option”) to purchase up to twenty-five percent (25% of such Buyer’s Allocation Percentage (such 25% of such Buyer’s Allocation Percentage being referred to herein as such Buyer’s “Participation Percentage”%) of the total amount of securities securities, rights or interests to be issued or sold in such Future Offering Offering, multiplied by such Buyer’s Allocation Percentage (the limitations referred to in this and the preceding sentence are collectively referred to as the “Capital Raising Limitations”) and on ). No Future Offering Notice shall contain any material non-public information regarding the same terms as offered to Company or any of the other investors and participants in such Future OfferingSubsidiaries. Upon the written request of any Buyer made within five (5) Business Days after its receipt of a Future Offering Notice (an “Additional Information Request”), the Company shall provide the Buyers each Buyer with such additional information regarding the proposed Future Offering, including the name of the purchaser, and the terms and conditions and use of proceeds thereof, as any such Buyer shall reasonably request. A Each Buyer may exercise its Buyer Purchase Option by delivering written notice (the “Buyer Purchase Notice Date”) to the Company within five (5) Business Days after the later of (i) such the Buyer’s receipt of a Future Offering Notice or (ii) such the Buyer’s receipt of all of the information reasonably requested by the Buyer in an Additional Information Request (the “Buyer Purchase Notice Date”)Request, which notice shall state the quantity or percentage of securities securities, rights or interests being offered in the Future Offering that such the Buyer will purchase, up to its Participation Percentage, and that quantity or percentage of securities (if any) it is willing to purchase in excess of its Allocation Percentage (such Buyer’s “Over-allotment Amount”). In the event that one or more Buyers fail to elect to purchase up to each such Buyer’s Allocation Percentage, then each of the Buyers that have indicated a willingness to purchase a Buyer Over-allotment Amount shall be entitled to purchase an amount of the securities subject to the Buyer Purchase Option that such Buyer or Buyers have failed to elect to purchase (the “Unpurchased Securities”) equal to the lesser of (x) the Buyer Over-allotment Amount of such Buyer, and (y) the product of (I) such Buyer’s Allocation Percentage, and (II) the aggregate amount of such Unpurchased Securities subject to the Buyer Purchase Option. The Company or the Subsidiary, as appropriate, shall have sixty (60) days following the Buyer Purchase Notice Date to sell the securities securities, rights or interests of the Future Offering (other than the securities securities, rights or interests to be purchased by the Buyers pursuant to this Section 4(t5(t)), upon terms and conditions no more favorable to the purchasers thereof than specified in the Future Offering Notice. The exercise of a Buyer Purchase Option shall be contingent upon, and contemporaneous with, the consummation of such Future Offering; provided, that notwithstanding a Buyer’s exercise of the Buyer Purchase Option with respect to a particular Future Offering, the determination to complete any such Future Offering shall be within the Company’s sole discretion. In connection with such consummation, each Buyer (if it exercises its Buyer Purchase Option) shall deliver to the Company duly and properly executed originals of any documents reasonably required by the Company to effectuate such Future Offering, together with payment of the purchase price for the securities, rights or interests being purchased by such Buyer in such Future Offering, and the Company or the Subsidiary, as appropriate, shall promptly issue to such Buyer the securities, rights or interests purchased thereby. In the event the Company or the Subsidiary, as appropriate, has not sold such securities, rights or interests of the Future Offering within such 60-day period, then the Company and the Subsidiaries shall not thereafter issue or sell such securities, rights or interests or any other securities, rights or interests subject to this Section 5(t) without first offering such securities, rights or interests to such Buyer in the manner provided in this Section 5(t). Such Buyer shall not be required to participate or exercise its right of participation with respect to a particular Future Offering in order to exercise its right of participation with respect to later Future Offerings. The Capital Raising Limitations shall not apply to (i) any transaction involving the Company’s issuances of securities, rights or interests (A) as consideration in a merger or consolidation (the primary purpose or material result of which is not to raise or obtain equity capital or cash), (B) in connection with any strategic partnership or joint venture (the primary purpose or material result of which is not to raise or obtain equity capital or cash), or (C) as consideration for the acquisition of a business, product, license or other assets by the Company (the primary purpose or material result of which is not to raise or obtain equity capital or cash) or (ii) Exempted Issuances (as defined in the Warrants).
Appears in 1 contract
Samples: Securities Purchase Agreement (Sonterra Resources, Inc.)
