Common use of Subscription Right Clause in Contracts

Subscription Right. (i) If at any time after the date hereof and prior to the Initial Public Offering, the Company proposes to issue equity securities of any kind (for purposes of this Section 3(f), the term “equity securities” shall include any warrants, options or other rights to acquire equity securities or debt securities convertible into equity securities) of the Company (other than the issuance of securities (i) upon conversion of the Existing Series A Preferred, Series B Preferred Stock or Series C Preferred Stock pursuant to the Certificate of Incorporation, (ii) to the public in a firm commitment underwriting pursuant to a registration statement filed under the Securities Act, (iii) pursuant to the acquisition of another Person by the Company or any subsidiary, whether by purchase of stock, merger, consolidation, purchase of all or substantially all of the assets of such Person or otherwise, provided such acquisition has been approved by the Board and such securities are being issued as consideration for the transaction and not in connection with financing the transaction, (iv) pursuant to an employee stock option plan, stock bonus plan, stock purchase plan, employment agreement or other management equity program approved by the Board, (v) to vendors, lenders and customers of and consultants to the Company or any subsidiary or in connection with a strategic partnership (provided such securities are being issued as consideration for the strategic partnership and not in connection with financing the strategic partnership), in each case, to the extent such issuance has been approved by the Board, (vi) by reason of a dividend, stock split or other distribution on shares of Common Stock, (vii) to one or more of the Institutional Investors and/or their Affiliates pursuant to the terms of the Stock Purchase Agreement, or (viii) to any Other Investor pursuant to the terms of any employment or similar agreement between the Company and such Other Investor to the extent such employment or similar agreement was approved by the Board, then, subject to the provisions set forth below, including Section 3(f)(vi) below, as to each Institutional Investor, Janus, Norwest and as to each Other Investor approved in writing by the WP X Funds to be listed on Schedule III hereto, provided that such Other Investor is an employee of the Company or its subsidiaries at such time (each a “Subscription Right Investor”), the Company shall:

Subscription Right. (ia) If at any time after the date hereof and prior to the Initial Public Offeringhereof, the Company proposes to issue equity securities of any kind (for purposes of this Section 3(f)these purposes, the term “"equity securities” " shall include include, without limitation, Common Stock, any warrants, options or other rights to acquire equity securities or and debt securities convertible into equity securities) of the Company (other than the issuance of securities shares of Common Stock (i) to the Investor or its Affiliates, (ii) upon conversion of any convertible instruments of the Existing Series A Preferred, Series B Preferred Stock or Series C Preferred Stock pursuant to Company outstanding on the Certificate of Incorporation, (ii) to the public in a firm commitment underwriting pursuant to a registration statement filed under the Securities ActFirst Closing Date, (iii) pursuant in the ordinary course to employees, directors, consultants or advisors to the acquisition of another Person by the Company or any subsidiaryCompany, whether by purchase of stock, merger, consolidation, purchase of all or substantially all of the assets of such Person or otherwise, provided such acquisition has been as approved by the Board and such securities are being issued as consideration for the transaction and not in connection with financing the transactionBoard, (iv) pursuant to an existing employee stock option planplan (including the Company's 1996 Stock Incentive Plan, which is being amended to increase the total number of shares reserved for issuance thereunder to 3,250,000 shares at the Company's 2001 Annual Meeting of Stockholders to be held May 31, 2001), stock bonus plan, stock purchase plan, employment agreement plan or other management equity program program, such issuances not to exceed the amounts set forth in Schedule 2.8 prior to the Second Closing Date, (iv) subsequent to the Second Closing Date, in connection with any stock split or stock dividend of the Company or (vi) subsequent to the Second Closing Date, to vendors or customers or to other persons in similar commercial situations, as approved by the Board, (v) to vendors, lenders and customers of and consultants to the Company or any subsidiary or in connection with a strategic partnership (provided such securities are being issued as consideration for the strategic partnership and not in connection with financing the strategic partnership), in each case, to the extent such issuance has been approved by the Board, (vi) by reason of a dividend, stock split or other distribution on shares of Common Stock, (vii) to one or more of the Institutional Investors and/or their Affiliates pursuant to the terms of the Stock Purchase Agreement, or (viii) to any Other Investor pursuant to the terms of any employment or similar agreement between the Company and such Other Investor to the extent such employment or similar agreement was approved by the Board, then, subject to the provisions set forth below, including Section 3(f)(vi) below, as to each Institutional the Investor, Janus, Norwest and as to each Other Investor approved in writing by the WP X Funds to be listed on Schedule III hereto, provided that such Other Investor is an employee of the Company or its subsidiaries at such time (each a “Subscription Right Investor”), the Company shall: (1) give written notice setting forth in reasonable detail (1) the designation and all of the terms and provisions of the securities proposed to be issued (the "Proposed Securities"), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (2) the price and other terms of the proposed sale of such securities; (3) the amount of such securities proposed to be issued; and (4) such other information as the Investor may reasonably request in order to evaluate the proposed issuance; and (2) offer to issue to the Investor upon the terms described in subparagraph (i) above a portion of the Proposed Securities (the "Subscription Securities") equal to a percentage determined by dividing (x) the number of shares of Common Stock Owned by the Investor, by (y) the total number of shares of Common Stock beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by all holders of Common Stock, options or convertible securities immediately preceding the issuance of the Proposed Securities. (b) The Investor must exercise its purchase rights hereunder within ten (10) days after receipt of such notice from the Company. To the extent that the Company offers two or more securities in units, the Investor must purchase such units as a whole and will not be given the opportunity to purchase only one of the securities making up such unit. (c) Upon the expiration of the offering periods described above, the Company will be free to sell such Subscription Securities that the Investor has not elected to purchase during the ninety (90) days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Investor. Any Subscription Securities offered or sold by the Company after such 90 day period must be reoffered to the Investor pursuant to this Section 4.5. (d) The election by the Investor not to exercise its subscription rights under this Section 4.5 in any one instance shall not affect its right (other than in respect of a reduction in its percentage holdings) as to any subsequent proposed issuance. Any sale of such securities by the Company without first giving the Investor the rights described in this Section 4.5 shall be void and of no force and effect.

Subscription Right. (i) If at any time after the date hereof and prior to the Initial Public Offeringhereof, the Company proposes to issue equity securities of any kind (for purposes of this Section 3(f)these purposes, the term “"equity securities” " shall include include, without limitation, any equity securities, any warrants, options or other rights to acquire equity securities or and securities (including, without limitation, debt securities securities) convertible into or exchangeable for equity securities) of the Company (other than the issuance of securities (i) upon conversion of the Existing Series A Preferred, Series B Preferred Stock or Series C Preferred Stock Units pursuant to the Certificate of IncorporationOperating Agreement, (ii) to the public in a firm commitment underwriting pursuant to a registration statement filed under the Securities Act, (iii) pursuant to the acquisition of another Person by the Company or any subsidiaryits Subsidiaries, whether by purchase of stock, merger, consolidation, purchase of all or substantially all of the assets of such Person or other form of reorganization or otherwise, provided such acquisition has been approved by the Board and such securities are being issued as consideration for the transaction and not in connection with financing the transaction, (iv) pursuant to an employee stock unit option plan, stock unit bonus plan, stock unit purchase plan, employment agreement plan or other management equity program in effect on the date hereof or subsequently approved by the Board, which approval shall include the approval of the Preferred Directors, and not effected for the primary purpose of raising capital, (v) in the form of warrants issued to lessors of property and/or equipment or to financial institutions or related entities in connection with commercial credit or financing or other similar arrangements which are approved by a majority of the Board, which approval shall include the approval of the Preferred Directors, (vi) in connection with corporate partnering arrangements which are approved by a majority of the Board, which approval shall include the approval of the Preferred Directors, (vii) to vendors, lenders and customers of and consultants to the Company or any subsidiary or in connection with a strategic partnership (provided such securities are being issued as consideration for the strategic partnership and not in connection with financing the strategic partnership), in each case, to the extent such issuance has been approved by the Board, (vi) by reason of a dividend, stock split or other distribution on shares of Common Stock, (vii) to one or more which approval shall include the approval of the Institutional Investors and/or their Affiliates pursuant to the terms of the Stock Purchase AgreementPreferred Directors, or (viii) to any Other Investor pursuant to upon contribution of all or a portion of the ev3 Inc., a Delaware corporation ("ev3"), demand promissory notes held by the Warburg Investors and the Vertical Investors for preferred units of the Company having the same rights, powers, preferences and relative participating, optional or other special rights as the Class B Preferred Membership Units, as contemplated by the terms of any employment or similar agreement between that certain Option, Contribution and Exchange Agreement, dated as of August 29, 2003, by and among the Company Company, ev3, the Warburg Investors and such Other Investor the Vertical Investors, as the same may be amended from time to the extent such employment or similar agreement was approved by the Boardtime), then, subject as to the provisions set forth belowPreferred Investors (as long as the Preferred Investors Own, including Section 3(f)(viin the aggregate, at least five percent (5%) below, as to each Institutional Investor, Janus, Norwest and as to each Other Investor approved in writing by the WP X Funds to be listed on Schedule III hereto, provided that such Other Investor is an employee of the Company or its subsidiaries at such time then outstanding Common Units (each a “Subscription Right Investor”hereinafter for purposes of this Section 3(e) referred to as the "Additional Purchasers"), the Company shall: (A) give written notice setting forth in reasonable detail (i) all of the terms and provisions of the equity securities proposed to be issued (the "Proposed Securities"), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations or restrictions thereof and interest rate and maturity; (ii) the price, proposed purchasers and other terms of the proposed sale of such securities; (iii) the amount of such securities proposed to be issued; and (iv) such other information as the Additional Purchasers may reasonably request in order to evaluate the proposed issuance; and (B) offer to issue to each such Additional Purchaser a portion of the Proposed Securities equal to a percentage obtained by dividing (x) the number of Common Units Owned by such Additional Purchaser, by (y) the total number of Common Units then outstanding, including for purposes of this calculation all Common Units issuable upon conversion in full of any then outstanding convertible securities, including, without limitation, the Preferred Units. (ii) Each such Additional Purchaser must exercise its purchase rights hereunder within twenty (20) days after receipt of such notice from the Company. If all of the Proposed Securities offered to such Additional Purchasers are not fully subscribed by such Additional Purchasers, the remaining Proposed Securities will be reoffered to the Additional Purchasers purchasing their full allotment upon the terms set forth in this Section 3(e), until all such Proposed Securities are fully subscribed for or until all such Additional Purchasers have subscribed for all such Proposed Securities which they desire to purchase, except that such Additional Purchasers must exercise their purchase rights within five (5) days after receipt of all such reoffers. To the extent that the Company offers two or more securities in units, Additional Purchasers must purchase such units as a whole and will not be given the opportunity to purchase only one of the securities making up such unit. (iii) Upon the expiration of the offering periods described above, the Company will be free to sell such Proposed Securities that the Additional Purchasers have not elected to purchase during the ninety (90) days following such expiration at a price and on terms and conditions no more favorable to the purchasers thereof than those offered to such holders. Any Proposed Securities offered or sold by the Company after such 90-day period must be reoffered to the Additional Purchasers pursuant to this Section 3(e). (iv) The election by an Additional Purchaser not to exercise its subscription rights under this Section 3(e) in any one instance shall not affect its right (other than in respect of a reduction in its percentage holdings) as to any subsequent proposed issuance. Any sale of such securities by the Company without first giving the Additional Purchasers the rights described in this Section 3(e) shall be void and of no force and effect.

Subscription Right. (i) If at any time after the date hereof and prior to the Initial Public Offering, the Company proposes to issue equity securities of any kind (for purposes of this Section 3(f3(e), the term “equity securities” shall include any warrants, options or other rights to acquire equity securities or debt securities convertible into equity securities) of the Company (other than the issuance of securities (i) upon conversion of the Existing Series A Preferred, Series B Preferred Stock or Series C Preferred Stock pursuant to the Certificate of Incorporation, (ii) to the public in a firm commitment underwriting pursuant to a registration statement filed under the Securities Act, (iii) pursuant to the acquisition of another Person by the Company or any subsidiary, whether by purchase of stock, merger, consolidation, purchase of all or substantially all of the assets of such Person or otherwise, provided such acquisition has been approved by the Board and such securities are being issued as consideration for the transaction and not in connection with financing the transaction, (iv) pursuant to an employee stock option plan, stock bonus plan, stock purchase plan, employment agreement or other management equity program approved by the Board, including at least one Warburg Pincus Director, (v) to vendors, lenders and customers of and consultants to the Company or any subsidiary or in connection with a strategic partnership (provided such securities are being issued as consideration for the strategic partnership and not in connection with financing the strategic partnership), in each case, to the extent such issuance has been approved by the Board, including at least one Warburg Pincus Director, (vi) by reason of a dividend, stock split or other distribution on shares of Common StockStock or Preferred Stock (including, without limitation, any shares of Common Stock issued pursuant to Section 1.6 of Part B of Article IV of the Certificate of Incorporation as payment for the Accrued Dividends (as defined therein)), (vii) to one or more of the Institutional Investors and/or their Affiliates pursuant to the terms of the Stock Series E Securities Purchase Agreement, or (viii) to any Other Investor pursuant to the terms of any employment or similar agreement between the Company and such Other Investor to the extent such employment or similar agreement was approved by the Board, including at least one Warburg Pincus Director), or (ix) upon the exercise of warrants, issued and outstanding as of the date hereof, to purchase the capital stock of the Company, then, subject to the provisions set forth below, including Section 3(f)(vi3(e)(vi) below, as to each Institutional InvestorInvestor and each Mutual Fund Investor (including Mubadala and its Affiliates, Janussuch Affiliates subject to Company consent, Norwest such consent not to be unreasonably withheld) and as to each Other Investor approved in writing by the WP X Funds to be listed on Schedule III hereto, provided that such Other Investor is an employee of the Company or its subsidiaries at such time (each a “Subscription Right Investor”), the Company shall:

Subscription Right. (ia) If at any time after the date hereof and prior to the Initial Public Offeringhereof, the Company proposes to issue equity securities of any kind (for purposes of this Section 3(f), the term “equity securities” shall include for these purposes any warrants, options or other rights to acquire equity securities or and debt securities convertible into or exchangeable for equity securities) of the Company to any Person, except for issuances (other than the issuance of securities (i1) upon conversion of the Existing Series A Preferred, Series B Preferred Stock personally and not directly or Series C Preferred Stock pursuant indirectly to the Certificate BC Investors, to any director, employee, or consultant of Incorporation, (ii) or to the public in a firm commitment underwriting pursuant to a registration statement filed under the Securities Act, (iii) pursuant to the acquisition of another Person by the Company or any subsidiary, whether by purchase of stock, merger, consolidation, purchase of all or substantially all of the assets of such Person or otherwise, provided such acquisition has been approved by the Board and such securities are being issued as consideration for the transaction and not in connection with financing the transaction, (iv) its subsidiaries pursuant to an employee stock option plan or any benefit plan, stock bonus plan, stock purchase plan, employment agreement or other management equity program in each case approved by the Board, (v2) issued pursuant to vendorsa stock split, lenders and customers of and consultants subdivision, or similar transaction or dividend applicable to the outstanding equity interests of the Company as a dividend or share split of any subsidiary equity interests then outstanding, (3) pursuant to a public offering (to persons other than BC Investors or their Affiliates), (4) convertible debt securities or fixed rate preferred stock sold in connection with a strategic partnership an underwritten offering to persons other than BC Investors or Silver Lake (provided such securities are being or their Affiliates) or (5) issued as consideration for the strategic partnership and not in connection any merger, acquisition or joint venture with financing the strategic partnership), in each case, to the extent such issuance has been another business enterprise approved by the Board, Board of Directors (vi) by reason of a dividend, stock split or other distribution on shares of Common Stock, (vii) to one or more with the affirmative vote of the Institutional Investors and/or their Affiliates pursuant to the terms of the Stock Purchase Agreement, or (viiiSilver Lake Director) to any Other Investor pursuant to the terms of any employment or similar agreement between the Company and such Other Investor to the extent such employment or similar agreement was approved by the Board, then, subject to the provisions set forth below, including Section 3(f)(vi) below, as to each Institutional Investor, Janus, Norwest and as to each Other Investor approved in writing by the WP X Funds to be listed on Schedule III hereto, provided that such Other Investor is an employee of the Company or its subsidiaries at such time (each a “Subscription Right Investor”), the Company shall: (i) give written notice setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price and other terms of the proposed sale of such securities; (C) the amount of such securities proposed to be issued; and (D) such other information as the Shareholders may reasonably request in order to evaluate the proposed issuance; and (ii) offer to issue to each Shareholder a portion of the Proposed Securities equal to their pro rata share, based on their aggregate equity ownership in the Company, including, without limitation, for purposes of this calculation all shares of Common Stock outstanding on a fully diluted basis (the “Subscription Right”). (iii) Notwithstanding the foregoing, the Company shall not issue any Proposed Equity Security at less than fair market value, as determined by the Board in good faith, except upon exercise of options or convertible securities where the exercise price or the conversion price was at or above fair market value at the time of issuance, as determined by the Board in good faith. (b) Each Shareholder must exercise its Subscription Right hereunder within five (5) business days after receipt of such notice from the Company. If all of the Proposed Securities offered to the Shareholders are not fully subscribed by the Shareholders, the remaining Proposed Securities will be reoffered to the Shareholders purchasing their full allotment upon the terms set forth in this Section 3.04(a), until all such Proposed Securities are fully subscribed for or until all the Shareholders have subscribed for all such Proposed Securities which they desire to purchase, except that the Shareholders must exercise their purchase rights within five (5) business days after receipt of all such reoffers. To the extent that the Company offers two or more securities in units, the Shareholder must purchase such units as a whole and will not be given the opportunity to purchase only one of the securities making up such unit. (c) Upon the expiration of the offering and reoffering periods described above, the Company will be free to sell such Proposed Securities that the Shareholders have not elected to purchase during the ninety (90) days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to such Shareholder. Any Proposed Securities offered or sold by the Company after such 90 day period must be reoffered to the Shareholders pursuant to this Section 3.04. (d) The election by a Shareholder not to exercise its Subscription Rights under this Section 3.04 in any one instance shall not affect its right (other than in respect of a reduction in its percentage holdings) as to any subsequent proposed offer or reoffer. Any sale of such securities by the Company without first giving the Shareholders the rights described in this Section 3.04 shall be void and of no force or effect.

Subscription Right. (ia) If at any time after the date hereof and prior to the Initial Public Offeringhereof, the Company proposes to issue equity securities of any kind (for purposes of this Section 3(f), the term “equity securities” shall include for these purposes any warrants, options or other rights to acquire equity securities or and debt securities convertible into or exchangeable for equity securities) of the Company to any Person, except for issuances (other than the issuance of securities (i1) upon conversion of the Existing Series A Preferred, Series B Preferred Stock personally and not directly or Series C Preferred Stock pursuant indirectly to the Certificate BC Investors, to any director, employee, or consultant of Incorporation, (ii) or to the public in a firm commitment underwriting pursuant to a registration statement filed under the Securities Act, (iii) pursuant to the acquisition of another Person by the Company or any subsidiary, whether by purchase of stock, merger, consolidation, purchase of all or substantially all of the assets of such Person or otherwise, provided such acquisition has been approved by the Board and such securities are being issued as consideration for the transaction and not in connection with financing the transaction, (iv) its subsidiaries pursuant to an employee stock option plan or any benefit plan, stock bonus plan, stock purchase plan, employment agreement or other management equity program in each case approved by the Board, (v2) issued pursuant to vendorsa stock split, lenders and customers of and consultants subdivision, or similar transaction or dividend applicable to the outstanding equity interests of the Company as a dividend or share split of any subsidiary equity interests then outstanding, (3) pursuant to a public offering (to persons other than BC Investors or their Affiliates), (4) of convertible debt securities or fixed rate preferred stock sold in connection with a strategic partnership an underwritten offering to persons other than BC Investors (provided such securities are being or their Affiliates) or (5) issued as consideration for the strategic partnership and not in connection any merger, acquisition or joint venture with financing the strategic partnership), in each case, to the extent such issuance has been another business enterprise approved by the Board, (vi) by reason of a dividend, stock split or other distribution on shares of Common Stock, (vii) to one or more of the Institutional Investors and/or their Affiliates pursuant to the terms of the Stock Purchase Agreement, or (viii) to any Other Investor pursuant to the terms of any employment or similar agreement between the Company and such Other Investor to the extent such employment or similar agreement was approved by the Board, then, subject to the provisions set forth below, including Section 3(f)(vi) below, as to each Institutional Investor, Janus, Norwest and as to each Other Investor approved in writing by the WP X Funds to be listed on Schedule III hereto, provided that such Other Investor is an employee of the Company or its subsidiaries at such time (each a “Subscription Right Investor”), Board then the Company shall: (i) give written notice setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price and other terms of the proposed sale of such securities; (C) the amount of such securities proposed to be issued; and (D) such other information as the Shareholders may reasonably request in order to evaluate the proposed issuance; and (ii) offer to issue to each of the Bridge Investors a portion of the Proposed Securities equal to their pro rata share, based on their aggregate equity ownership in the Company, including, without limitation, for purposes of this calculation all shares of Common Stock outstanding on a fully diluted basis (the “Subscription Right”). (iii) Notwithstanding the foregoing, the Company shall not issue any Proposed Security at less than fair market value, as determined by the Board in good faith, except upon exercise of options or convertible securities where.the exercise price or the conversion price was at or above fair market value at the time of issuance, as determined by the Board in good faith. (b) Each Shareholder must exercise its Subscription Right hereunder within ten (10) Business Days after receipt of the notice from the Company containing the information in Section 3.04(a)(i). If all of the Proposed Securities offered to the Shareholders are not fully subscribed by the Shareholders, the remaining Proposed Securities will be reoffered to the Shareholders purchasing their full allotment upon the terms set forth in this