Rights to Purchase Additional Stock. (a) Except for Excluded Stock, the Covenant Preferred Stockholders shall have the right to subscribe to any and all issuances of Capital Stock of the Company ("Company Offered Shares"). Each Covenant Preferred Stockholder shall have the right to purchase that number of Company Offered Shares as shall be equal to the number of Company Offered Shares multiplied by a fraction, the numerator of which shall be the number of Shares then owned by such Covenant Preferred Stockholder and the denominator of which shall be the aggregate number of Shares then owned by all of the Covenant Preferred Stockholders (the "Fraction"). For purposes of calculating the Fraction, all issued and outstanding securities held by the Covenant Preferred Stockholders that are convertible into or exercisable or exchangeable for shares of Common Stock (including any issued and issuable Covenant Preferred Shares) or for any such convertible, exercisable or exchangeable securities, shall be treated as having been so converted, exercised or exchanged. (b) In the event the Company shall propose to issue Capital Stock except for Excluded Stock, the Company shall give written notice (the "Offer of Shares") to each Covenant Preferred Stockholder, which shall set forth the number and kind or class of shares of Capital Stock proposed to be issued, the terms and conditions thereof and the price therefor. Such notice shall be given at least twenty (20) days prior to the issuance of such Capital Stock. (c) The Offer of Shares by its terms shall remain open and irrevocable for a period of twenty (20) days from the date of its delivery to such Covenant Preferred Stockholder ("20-Day Period"). (d) Each Covenant Preferred Stockholder shall evidence its acceptance of the Offer of Shares by delivering a written notice ("Notice of Acceptance"), signed by the Covenant Preferred Stockholder, setting forth the number of Company Offered Shares which the Covenant Preferred Stockholder elects to purchase. The Notice of Acceptance must be delivered to the Company prior to the end of the 20-Day Period. (e) If the Covenant Preferred Stockholders do not tender Notices of Acceptance for all of the Company Offered Shares, the Company shall have ninety (90) days from the expiration of the 20-Day Period to sell all or any part of the Company Offered Shares refused by the Covenant Preferred Stockholders to any Person(s), but only upon terms and conditions which are in all material respects no more favorable to such other Person(s) than those set forth in the Offer of Shares.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Diversa Corp), Stock Purchase Agreement (Diversa Corp)
Rights to Purchase Additional Stock. (a) Except for Excluded Stock, the Covenant Preferred Stockholders shall have the right to subscribe to any and all issuances of Capital Stock of the Company ("Company Offered Shares"). Each Covenant Preferred Stockholder shall have the right to purchase that number of Company Offered Shares as shall be equal to the number of Company Offered Shares multiplied by a fraction, the numerator of which shall be the number of Shares then owned by such Covenant Preferred Stockholder and the denominator of which shall be the aggregate number of Shares then owned by all of the Covenant Preferred Stockholders (the "Fraction"). For purposes of calculating the Fraction, all issued and outstanding securities held by the Covenant Preferred Stockholders that are convertible into or exercisable or exchangeable for shares of Common Stock (including any issued and issuable Covenant Preferred Shares) or for any such convertible, exercisable or exchangeable securities, shall be treated as having been so converted, exercised or exchanged.
(b) In the event the Company shall propose to issue Capital Stock except for Excluded Stock, the Company shall give written notice (the "Offer of Shares") to each Covenant Preferred Stockholder, which shall set forth the number and kind or class of shares of Capital Stock proposed to be issued, the terms and conditions thereof and the price therefor. Such notice shall be given at least twenty (20) days prior to the issuance of such Capital Stock.
(c) The Offer of Shares by its terms shall remain open and irrevocable for a period of twenty (20) days from the date of its delivery to such Covenant Preferred Stockholder ("20-Day Period").
(d) Each Covenant Preferred Stockholder shall evidence its acceptance of the Offer of Shares by delivering a written notice ("Notice of Acceptance"), signed by the Covenant Preferred Stockholder, setting forth the number of Company Offered Shares which the Covenant Preferred Stockholder elects to purchase. The Notice of Acceptance must be delivered to the Company prior to the end of the 20-Day Period.
(e) If the Covenant Preferred Stockholders do not tender Notices of Acceptance for all of the Company Offered Shares, the Company shall have ninety (90) days from the expiration of the 20-Day Period to sell all or any part of the Company Offered Shares refused by the Covenant Preferred Stockholders to any Person(s), but only upon terms and conditions which are in all material respects no more favorable to such other Person(s) than those set forth in the Offer of Shares.
(f) Upon the closing of the sale of Company Offered Shares to any third party (which shall include full payment of the purchase price to the Company), each Covenant Preferred Stockholder shall (i) purchase from the Company, and the Company shall issue and sell to such Covenant Preferred Stockholder, any Company Offered Shares for which such Covenant Preferred Stockholder tendered a Notice of Acceptance upon the terms specified in the Offer of Shares and (ii) execute and deliver an agreement restricting transfer of such Company Offered Shares substantially as set forth in Section 3 of this Agreement.
(g) In each case, any Company Offered Shares not purchased either by the Covenant Preferred Stockholders or by any other Person in accordance with this Section 4 may not be sold or otherwise disposed of until they are again offered to the Covenant Preferred Stockholder under the procedures specified in this Section 4.
(h) If the Capital Stock to be issued by the Company is to be issued pursuant to a Public Offering (i) notwithstanding the time periods set forth above, the Company may require that the Covenant Preferred Stockholders make an election to either (A) commit to purchase shares of Capital Stock from the Company at a price no higher than the public offering price at the closing of the Public Offering or (B) waive their rights to subscribe for additional shares of Common Stock to be issued in the Public Offering, (ii) the subscription right shall not be applicable to shares issuable if the underwriters exercise their over-allotment option; and (iii) the amount to be purchased pursuant to this Section 4(h) may be reduced if in the written opinion of the managing underwriters of the Public Offering, the purchase of such number of shares by the Covenant Preferred Stockholders would adversely impact the Public Offering. Such election shall be made sufficiently in advance of the filing of the registration statement relating to the Public Offering as shall be reasonably requested by the Company.
(i) The rights provided by this Section 4 may be assigned by any Covenant Preferred Stockholder which is a limited partnership or a trust to any and all members of its Group, provided, that all such rights of any assignee to purchase Company Offered Shares will be subject to receipt of appropriate representations from such assignee as reasonably requested by the Company to ensure compliance with all applicable securities laws.
Appears in 2 contracts
Samples: Stockholders' Agreement (Diversa Corp), Stockholders' Agreement (Diversa Corp)
Rights to Purchase Additional Stock. (a) Except for Excluded Stock, the Covenant Preferred Stockholders and the Founders shall have the right to subscribe to any and all issuances of Capital Stock of the Company ("Company Offered Shares"). Each Covenant Preferred Stockholder shall have the right to purchase that number of Company Offered Shares as shall be in an amount equal to the number of Company Offered Shares multiplied by a fractionits, the numerator of which shall be the number of Shares then owned by such Covenant Preferred Stockholder and the denominator of which shall be the aggregate number of Shares then owned by all his or her Proportional Share of the Covenant Preferred Stockholders (issuances to the "Fraction")extent set forth in this Section 6. For purposes of calculating determining the Fraction"Proportional Share" of the securities to be issued to which ------------------ each Preferred Stockholder and Founder is entitled to subscribe, all issued and outstanding securities the number of shares of Common Stock or of Common Stock into which a Preferred Share is then convertible (without giving effect to the proposed issuance of securities) held by the Covenant Preferred Stockholders Stockholder or Founder, as the case may be, divided by the total number of shares of Common Stock outstanding prior to the offering on a fully diluted basis (i.e., assuming that are all the outstanding Preferred Shares and any other security of the Company convertible into or exercisable or exchangeable for shares of Common Stock (including shall have been converted into or exercised or exchanged for shares of Common Stock and that all options have been exercised. The Preferred Stockholders shall have a right of oversubscription such that if any issued and issuable Covenant Preferred Shares) Stockholders fails to subscribe for its, his or her full Proportional Share, the other Preferred Stockholders shall, among them, have the right to subscribe for any the balance of shares of Capital Stock in such convertibleissuance not so subscribed for. Such right of oversubscription may be exercised by a Preferred Stockholder by offering to subscribe for more than its, exercisable his or exchangeable securitiesher Proportional Share. If, as a result thereof, such oversubscriptions exceed the total number of shares of Capital Stock available in respect of such oversubscription privilege, the oversubscribing Preferred Stockholders shall be treated cut back with respect to their oversubscriptions so as having been to subscribe for the number of shares of Capital Stock as nearly as possible in accordance with their respective Proportional Share or as they may otherwise agree among themselves. In any event, each Preferred Stockholder's Proportional Share shall be such number of securities as may be necessary so converted, exercised or exchangedthat such holders' fully diluted Common Stock ownership is not reduced as a result of the foregoing preemptive rights transaction.
(b) In the event the Company shall propose to issue Capital Stock except for other than Excluded Stock, the Company shall give written notice (the "Offer of SharesSection 6 --------- Offer") to each Covenant Preferred Stockholder, Stockholder and Founder which shall set forth the ----- number and kind or class of shares of Capital Stock proposed to be issuedissued (the "Section 6 Offered Securities"), the terms and conditions thereof and the price ----------------------------- therefor. Such notice shall be given at least twenty (20) 30 days prior to the issuance of such Capital Stock.
(c) The Section 6 Offer of Shares by its terms shall remain open and irrevocable for a period of twenty (20) 30 days from the date of its delivery to such Covenant Preferred Stockholder or Founder ("2030-Day Period").. -------------
(d) Each Covenant A Preferred Stockholder or Founder shall evidence its its, his or her acceptance of the Section 6 Offer of Shares by delivering a written notice ("Notice of --------- Acceptance"), signed by the Covenant Preferred StockholderStockholder or Founder, as the case may ---------- be, and setting forth the number of Company Section 6 Offered Shares Securities which the Covenant Preferred Stockholder or Founder elects to purchase. The Notice of Acceptance must be delivered to the Company prior to the end of the 2030-Day Period.
(e) If the Covenant Preferred Stockholders and the Founders do not tender Notices of Acceptance for all of the Company Section 6 Offered SharesSecurities, the Company shall have ninety (90) 120 days from the expiration of the 2030-Day Period to sell all or any part of the Company Section 6 Offered Shares Securities refused by the Covenant Preferred Stockholders and the Founders to any Person(sperson(s), but only . Any such sale shall be upon terms and conditions which are in all material respects no more conditions, including price, not less favorable to such other Person(s) the Company than those specified in the Section 6 Offer.
(f) Upon the closing of the sale of Section 6 Offered Securities to any third party, each Preferred Stockholder and Founder shall purchase from the Company, and the Company shall issue and sell to such Preferred Stockholder and Founder any Section 6 Offered Securities for which such Preferred Stockholder or Founder tendered a Notice of Acceptance upon the terms specified in the Section 6 Offer.
(g) In each case, any Section 6 Offered Securities not purchased either by the Preferred Stockholders, the Founders or by any other person in accordance with this Section 6 may not be sold or otherwise disposed of until they are again offered to the Preferred Stockholders and Founders under the procedures specified in this Section 6.
(h) Notwithstanding the time periods set forth above, in the Offer event the Section 6 Offered Securities to be issued by the Company are to be issued pursuant to a Public Offering, the Company may require that the Preferred Stockholders and Founders make an election on such date prior to the filing of Sharesthe registration statement or any amendment thereto relating to the Public Offering as shall be determined by the Company to either (i) commit to purchase from the Company at the public offering price at the closing of the Public Offering, or (ii) waive their rights to subscribe for their Proportional Share of Section 6 Offered Securities to be issued in the Public Offering. In addition to the foregoing, the offering of the Section 6 Offered Securities shall be subject to the following provisions: (a) the subscription right shall not be applicable to Section 6 Offered Securities issuable upon exercise of the underwriters' over-allotment option, and (b) the purchase by the Preferred Stockholders and the Founders shall only be made in a sale pursuant to Section 4(2) under the Securities Act which shall close simultaneously with the closing of the Public Offering.
Appears in 1 contract
Rights to Purchase Additional Stock. (a) Except for Excluded Stock, the Covenant Preferred Stockholders shall have the right to subscribe to any and all issuances of Capital Stock of the Company ("Company Offered Shares"). Each Covenant Preferred Stockholder shall have the right to purchase that number of Company Offered Shares as shall be equal to the number of Company Offered Shares multiplied by a fraction, the numerator of which shall be the number of Shares then owned by such Covenant Preferred Stockholder and the denominator of which shall be the aggregate number of Shares then owned by all of the Covenant Preferred Stockholders (the "Pro Rata Fraction"). For purposes of calculating the Pro Rata Fraction, all issued and outstanding securities held by each Preferred Share shall be deemed to represent the Covenant Preferred Stockholders that are convertible into or exercisable or exchangeable for shares number of Common Stock (including any issued and issuable Covenant Shares into which the Preferred Shares) or for any such Share is then convertible, exercisable or exchangeable securities, shall be treated as having been so converted, exercised or exchanged.
(b) In the event the Company shall propose to issue Capital Stock except for Excluded Stock, the Company shall give written notice (the "Offer of SharesOffer") to each Covenant Preferred Stockholder, which shall set forth the number and kind or class of shares of Capital Stock proposed to be issued, issued the terms and conditions thereof and the price therefor. Such notice shall be given at least twenty (20) 20 days prior to the issuance of such Capital Stock.
(c) The Offer of Shares by its terms term shall remain open and irrevocable for a period of twenty (20) 20 days from the date of its delivery to such Covenant Preferred Stockholder ("20-Day Period").
(d) Each Covenant The Preferred Stockholder shall evidence its acceptance of the Offer of Shares by delivering a written notice ("Notice of Acceptance"), signed by the Covenant Preferred Stockholder, setting forth the number of Company Offered Shares which the Covenant Preferred Stockholder elects to purchase. The Notice of Acceptance must be delivered to the Company prior to the end of the 20-Day Period.
(e) If the Covenant Preferred Stockholders do not tender Notices of Acceptance for all of the Company Offered Shares, the Company shall have ninety (90) 90 days from the expiration of the 20-Day Period to sell all or any part of the Company Offered Shares refused by the Covenant Preferred Stockholders to any Person(sperson(s), but only upon terms and conditions which are in all material respects no more favorable to such other Person(sperson(s) than those set forth in the Offer Offer.
(f) Upon the closing of Sharesthe sale of Offered Shares to any third party, each Preferred Stockholder shall purchase from the Company, and the Company shall issue and sell to such Preferred Stockholder, any Offered Shares for which such Preferred Stockholder tendered a Notice of Acceptance upon the terms specified in the Offer.
(g) In each case, any Offered Shares not purchased either by the Preferred Stockholders or by any other person in accordance with this Section 4 may not be sold or otherwise disposed of until they are again offered to the Preferred Stockholder under the procedures specified in this Section 4.
(h) If the Capital Stock to be issued by the Company is to be issued pursuant to a Public Offering, notwithstanding the time periods set forth above, the Company may require that the Preferred Stockholders make an election to either (i) commit to purchase shares of Capital Stock from the Company at the public offering price at the closing of the Public Offering or (ii) waive their rights to subscribe for additional shares of Common Stock to be issued in the Public Offering. Such election shall be made sufficiently in advance of the filing of the registration statement relating to the Public Offering as shall be reasonably requested by the Company.
(i) The rights provided by this Section 4 may be assigned by any Preferred Stockholder to any and all members of its Group, provided that all -------- such rights of any assignee to purchase Offered Shares will be subject to receipt of appropriate representations from such assignee as reasonably requested by the Company to ensure compliance with all applicable securities laws.
(a) With a view to making available the benefits of Rule 144 under the Securities Act (or any similar or successor rule which may at any time permit the sale of Common Shares to the public without registration), at all times after ninety (90) days after any registration statement covering an offering of securities of the Company under the Securities Act shall have become effective, the Company agrees to:
(i) make and keep public information available, as those terms are defined in Rule 144 under the Securities Act;
(ii) use its best efforts to file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and
(iii) furnish to each Preferred Stockholder promptly upon request a written statement by the Company as to its compliance with the reporting requirements of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed by the Company as such holder may reasonably request in availing itself of Rule 144 (or any similar or successor rule).
(b) With a view to making available the benefits of Rule 144A (or any similar or successor rule), the Company shall, upon request of a Preferred Stockholder, make and keep available such information as is required pursuant to that rule.
Appears in 1 contract
Samples: Stockholders' Agreement (3 Dimensional Pharmaceuticals Inc)
Rights to Purchase Additional Stock. (a) Except for Excluded Stock, Each of the Covenant Founders and each Five Percent Preferred Stockholders Stockholder shall have the right to subscribe to any and all issuances of Capital Stock of the Company ("Company Offered Shares"). Each Covenant Preferred Stockholder shall have the right to purchase that number Company, other than issuances of Company Offered Shares as shall be Excluded Stock, in an amount equal to the number of Company Offered Shares multiplied by a fraction, the numerator of which shall be the number of Shares then owned by such Covenant Preferred Stockholder and the denominator of which shall be the aggregate number of Shares then owned by all his or its Proportional Share of the Covenant Preferred Stockholders (issuances to the "Fraction")extent set forth in this Section 7. For purposes of calculating determining the Fraction"Proportional Share" of the securities to be issued to which each Founder and each Five Percent Preferred Stockholder, all issued and outstanding securities as the case may be, is entitled to subscribe, the number of shares of Common Stock or Common Stock then issuable upon conversion of Preferred Shares (without giving effect to the proposed issuance of securities) held by the Covenant subscribing Founder or the subscribing Five Percent Preferred Stockholders Stockholder shall be divided by the total number of shares of Common Stock outstanding prior to the offering on a fully diluted basis (i.e., assuming that are all the outstanding Preferred Stock and any other outstanding security of the Company convertible into or exercisable or exchangeable for shares of Common Stock (including any issued and issuable Covenant Preferred Shares) without the payment of consideration shall have been converted into or for any such convertible, exercisable or exchangeable securities, shall be treated as having been so converted, exercised or exchangedexchanged for shares of Common Stock).
(b) In the event the Company shall propose to issue Capital Stock Stock, except for Excluded Stock, the Company shall give written notice (the "Offer of SharesNotice") to each Covenant Founder and each Five Percent Preferred Stockholder, which shall set forth the number and kind or class of shares of Capital Stock proposed to be issued, issued (the "Offered Securities") the terms and conditions thereof and the price therefor. Such notice shall be given at least twenty (20) 20 days prior to the issuance of such Capital Stock.
(c) . The Offer of Shares by its terms term shall remain open and irrevocable for a period of twenty (20) 20 days from the date of its delivery to such Covenant Founder or Five Percent Preferred Stockholder (the "20-Day Period").
(dc) Each Covenant The Founder or Five Percent Preferred Stockholder shall evidence its acceptance of the Offer of Shares Notice by delivering a written notice ("Notice of Acceptance"), signed by the Covenant Founder or Five Percent Preferred Stockholder, setting forth the number of Company Offered Shares Securities which the Covenant Founder or Five Percent Preferred Stockholder elects to purchase. The Notice of Acceptance must be delivered to the Company prior to the end of the 20-Day Period.
(ed) If the Covenant Preferred Stockholders do not tender Notices of Acceptance for all of the Company Offered Shares, the The Company shall have ninety (90) 90 days from the expiration of the 20-Day Period to sell all or any part of the Company Offered Shares Securities refused by the Covenant Founders or the Five Percent Preferred Stockholders to any Person(sperson(s), but only upon terms and conditions which are in all material respects no more favorable to such other Person(sperson(s) than those set forth in the Offer Notice.
(e) Upon the closing of Sharesthe sale of Offered Securities to any third party, each Founder or Five Percent Preferred Stockholder shall purchase from the Company, and the Company shall issue and sell to such Founder or Five Percent Preferred Stockholder, any Offered Securities for which such Founder or Five Percent Preferred Stockholder tendered a Notice of Acceptance upon the terms specified in the Notice.
(f) In each case, any Offered Securities not purchased either by the Founders or the Five Percent Preferred Stockholders or by any other person in accordance with this Section 7 may not be sold or otherwise disposed of until they are again offered to the Founders and the Five Percent Preferred Stockholders under the procedures specified in this Section 7.
(g) If the Capital Stock to be issued by the Company is to be issued pursuant to a Public Offering, the Company may require that the Founders and the Five Percent Preferred Stockholders make an election to either: (i) commit to purchase shares of Capital Stock from the Company at the public offering price at the closing of the Public Offering or (ii) waive their rights to subscribe for additional shares of Common Stock to be issued in the Public Offering. Such election shall be effective if made by a majority of Five Percent Preferred Stockholders and shall be made sufficiently in advance of the filing of the registration statement relating to the Public Offering as shall be reasonably requested by the Company.
(h) The rights provided by this Section 7 may be assigned by any Five Percent Preferred Stockholder which is a limited partnership or a trust to any and all members of its Group, provided that all rights of any assignee to purchase Offered Securities will be subject to receipt of appropriate representations from such assignee as requested by the Company to ensure compliance with all applicable securities laws.
(i) In order to complete the offering and sale of the Series E Preferred Stock in a timely manner, the Founders and Five Percent Preferred Stockholders hereby waive compliance by the Company with the notice requirements as set forth in this Section 7 with respect to the sale and issuance of Series E Preferred Stock pursuant to the Stock Purchase Agreement.
Appears in 1 contract
