Subsequent Offerings. (a) For a period of eighteen months following the Subscription Date, if the Company's Board of Directors determines to pursue an offering of debt or equity securities of the Company in a capital raising transaction (a "PROPOSED OFFERING"), then prior to its commencement, the Company will notify the Representative of such Proposed Offering (a "CAPITAL RAISING NOTICE"). The Capital Raising Notice shall include the type of debt or equity securities to be offered, the aggregate amount intended to be raised in the Proposed Offering or a range thereof and such other terms as the Board of Directors may reasonably determine to be necessary or appropriate taking into account prevailing market conditions (the "OFFERED SECURITIES"). The Representative shall have the exclusive right during the forty-five (45) day period following the date of the Company's issuance of the Capital Raising Notice (the "EXCLUSIVITY PERIOD") to consummate the purchase of all or a part of the Offered Securities by one or more of the Purchasers or a syndicate of investors arranged by the Representative, in each case, subject to the terms and conditions set forth in the Capital Raising Notice. Notwithstanding anything contained herein to the contrary, during the Exclusivity Period, the Company shall have the right to discuss the terms of the Proposed Offering with placement agents, financial advisors, underwriters and finders ("FUNDRAISERS"); provided that in no event may the Company enter into an agreement binding upon the Company with respect to the Proposed Offering (other than confidentiality agreements) with such Fundraisers during the Exclusivity Period. (b) During the Exclusivity Period, if the Representative shall provide the Company with a proposal to purchase all or a portion of the Offered Securities upon similar terms as contained in the Capital Raising Notice, then the Representative shall notify the Company, which notice shall describe the terms of such proposal in reasonable detail, including any and all fees required to be incurred in connection with the issuance and sale of the Offered Securities (the "PURCHASER PROPOSAL"). As soon as reasonably practical following the Company's notice of such Purchaser Proposal, the Company's Board of Directors shall review and consider in good faith the Purchaser Proposal and make a determination as to whether to approve the Purchaser Proposal, which determination shall consider whether the terms of, and all fees that may be incurred by the Company in connection with, the issuance and sale of the Offered Securities are customary for a transaction of this nature. Any such determination by the Company's Board of Directors shall also be subject to the fiduciary duties and obligations of the Company's Board of Directors. If the Representative fails to submit, fails to close or the Company's Board of Directors fails to approve the Purchaser Proposal on or before the expiration of the Exclusivity Period in accordance with the terms and conditions of this Section 3.9, then the Company may offer and sell the Offered Securities to one or more third parties upon similar terms specified in the Capital Raising Notice without any obligation to submit another Capital Raising Notice to the Representative. (c) The Company agrees that if the Company receives a bona fide offer for the issuance and sale of Company's debt or equity securities in a capital raising transaction during the period commencing on the Subscription Date and ending on June 30, 2005 (a "THIRD PARTY OFFER"), and such Third Party Offer, when aggregated with all other sales of the Company's debt or equity securities in a capital raising transaction during such period, exceeds $1,000,000, then the Representative shall have the right, but not the obligation, to submit a proposal to purchase the Company's debt or equity securities by the Representative or syndicate of investors arranged by the Representative on terms and conditions more favorable to the Company than contained in the Third Party Offer. Any such proposal by the Representative shall be submitted to the Company within a reasonable period of time after the Company notifies the Representative of the Third Party Offer. The Company's Board of Directors shall review and consider in good faith any such proposal submitted by the Representative and make a determination as to whether to approve such proposal. (d) The Purchasers' and the Representative's rights and the Company's obligations under this Section 3.13 shall be subject to, and may be exercised only to the extent not in conflict with or violation of, the rights of Westminster Securities Corp. pursuant to the Company's agreement with Westminster Securities Corp. in effect as of the Subscription Date. The Purchasers and the Representative understand and agree that this Section 3.13 shall in no event apply to (i) the private placement of securities with proceeds to the Company of up to $10,000,000 pursuant to which Bathgate Capital Partners LLC acts a placement agent, (ii) any determination to seek, negotiate or enter into a loan or credit facility (with no associated rights to receive, upon conversion of outstanding balances or otherwise, any securities of the Company) with a commercial bank or lender or (iii) the exercise or conversion of any securities of the Company outstanding as of the Subscription Date.
Appears in 1 contract
Subsequent Offerings. (a) For a period of eighteen months following the Subscription Date, if the Company's Board of Directors determines The Company intends to pursue make an offering of debt or equity securities up to 27,750 shares of the Convertible Preferred Stock and up to 11,250 shares of the Perpetual Preferred Stock (together as a stapled unit of 2.46667 shares of Convertible Preferred Stock for each 1.0 share of Perpetual Preferred Stock and 0.405405 shares of Perpetual Preferred Stock for each 1.0 share of Convertible Preferred Stock) to certain other stockholders of the Company in a capital raising transaction (a "PROPOSED OFFERING"), then prior subsequent to its commencement, the Company will notify the Representative of such Proposed Offering (a "CAPITAL RAISING NOTICE"). The Capital Raising Notice shall include the type of debt or equity securities to be offered, the aggregate amount intended to be raised in the Proposed Offering or a range thereof and such other terms as the Board of Directors may reasonably determine to be necessary or appropriate taking into account prevailing market conditions (the "OFFERED SECURITIES"). The Representative shall have the exclusive right during the forty-five (45) day period following the date closing of the Company's issuance of the Capital Raising Notice (the "EXCLUSIVITY PERIOD") to consummate the purchase of all or a part of the Offered Securities transactions contemplated by one or more of the Purchasers or a syndicate of investors arranged by the Representative, in each case, subject to the terms and conditions set forth in the Capital Raising Noticethis Agreement. Notwithstanding anything contained herein to the contrary, during the Exclusivity Period, the Company shall have the right to discuss the terms of the Proposed Offering with placement agents, financial advisors, underwriters and finders ("FUNDRAISERS"); provided that in no event may the Company enter into an agreement binding upon the Company with respect to the Proposed Offering (other than confidentiality agreements) with such Fundraisers during the Exclusivity Period.
(b) During the Exclusivity Period, if the Representative shall provide the Company with a proposal to purchase all or a portion of the Offered Securities upon similar terms as contained in the Capital Raising Notice, then the Representative shall notify the Company, which notice shall describe the terms of such proposal in reasonable detail, including any and all fees required to be incurred in connection with the issuance and sale of the Offered Securities (the "PURCHASER PROPOSAL"). As soon as reasonably practical following the Company's notice of such Purchaser Proposal, the Company's Board of Directors shall review and consider in good faith the Purchaser Proposal and make a determination as to whether to approve the Purchaser Proposal, which determination shall consider whether the terms of, and all fees that may be incurred by the Company in connection with, the issuance and sale of the Offered Securities are customary for a transaction of this nature. Any such determination by the Company's Board of Directors shall also be subject to the fiduciary duties and obligations of the Company's Board of Directors. If the Representative fails to submit, fails to close or the Company's Board of Directors fails to approve the Purchaser Proposal on or before the expiration of the Exclusivity Period in accordance with the terms and conditions of this Section 3.9, then the Company may offer and sell the Offered Securities to one or more third parties upon similar terms specified in the Capital Raising Notice without any obligation to submit another Capital Raising Notice to the Representative.
(c) The Company agrees that if the Company receives a bona fide offer for the issuance and sale of Company's debt or equity securities in a capital raising transaction during the period commencing on the Subscription Date and ending on June 30, 2005 (a "THIRD PARTY OFFER"), and such Third Party Offer, when aggregated with all other sales of the Company's debt or equity securities in a capital raising transaction during such period, exceeds $1,000,000, then the Representative shall have the right, but not the obligation, to submit a proposal to purchase the Company's debt or equity securities by the Representative or syndicate of investors arranged by the Representative on terms and conditions more favorable to the Company than contained in the Third Party Offer. Any such proposal by the Representative shall be submitted to the Company within a reasonable period of time after the Company notifies the Representative of the Third Party Offer. The Company's Board of Directors shall review and consider in good faith any such proposal submitted by the Representative and make a determination as to whether to approve such proposal.
(d) The Purchasers' and the Representative's rights and the Company's obligations under this Section 3.13 shall be subject to, and may be exercised only to the extent not in conflict with or violation of, the rights of Westminster Securities Corp. pursuant to the Company's agreement with Westminster Securities Corp. in effect as of the Subscription Date. The Purchasers and the Representative understand and agree that this Section 3.13 shall in no event apply to offering (i) the will be effected pursuant to a private placement of securities with proceeds to exempt from registration under the Company of up to $10,000,000 pursuant to which Bathgate Capital Partners LLC acts a placement agentSecurities Act, (ii) any determination will commence as promptly as practicable following the Closing Date and (iii) will be consummated no later than 30 days following the Closing Date. Neither the Company nor, to seek, negotiate or enter into a loan or credit facility (with no associated rights to receive, upon conversion of outstanding balances or otherwise, any securities the knowledge of the Company) with a commercial bank or lender or , any Person acting on its behalf will take any action (iii) the exercise or conversion including, without limitation, any offering of any securities of the Company outstanding as under circumstances which would require, under the Securities Act, the integration of such offering with the offering and sale of the Subscription DateConvertible Preferred Stock or Perpetual Preferred Stock) which might reasonably be expected to subject the offering, issuance or sale of the shares of Preferred Stock being offered under this Agreement to the registration requirements of Section 5 of the Securities Act. The Company hereby agrees that any offering of Preferred Stock shall be made as a “stapled” unit of 2.46667 shares of Convertible Preferred Stock for each 1.0 share of Perpetual Preferred Stock offered and 0.405405 shares of Perpetual Preferred Stock for each 1.0 share of Convertible Preferred Stock offered. For the avoidance of doubt, after any such issuance of Preferred Stock, the Convertible Preferred Stock and Perpetual Preferred Stock so issued will trade separately from each other and not as a “stapled” unit. Notwithstanding anything herein to the contrary, the Company shall have no obligation to make any such offering to such other stockholders and may choose in its sole and absolute discretion not to do so.
Appears in 1 contract
Subsequent Offerings. (a) For a period of eighteen months following the Subscription Date, if the Company's Board of Directors determines to pursue an offering of debt or equity securities of the Company in a capital raising transaction (a "PROPOSED OFFERINGProposed Offering"), then prior to its commencement, the Company will notify the Representative of such Proposed Offering (a "CAPITAL RAISING NOTICECapital Raising Notice"). The Capital Raising Notice shall include the type of debt or equity securities to be offered, the aggregate amount intended to be raised in the Proposed Offering or a range thereof and such other terms as the Board of Directors may reasonably determine to be necessary or appropriate taking into account prevailing market conditions (the "OFFERED SECURITIESOffered Securities"). The Representative shall have the exclusive right during the forty-five (45) day period following the date of the Company's issuance of the Capital Raising Notice (the "EXCLUSIVITY PERIODExclusivity Period") to consummate the purchase of all or a part of the Offered Securities by one or more of the Purchasers or a syndicate of investors arranged by the Representative, in each case, subject to the terms and conditions set forth in the Capital Raising Notice. Notwithstanding anything contained herein to the contrary, during the Exclusivity Period, the Company shall have the right to discuss the terms of the Proposed Offering with placement agents, financial advisors, underwriters and finders ("FUNDRAISERSFundraisers"); provided that in no event may the Company enter into an agreement binding upon the Company with respect to the Proposed Offering (other than confidentiality agreements) with such Fundraisers during the Exclusivity Period.
(b) During the Exclusivity Period, if the Representative shall provide the Company with a proposal to purchase all or a portion of the Offered Securities upon similar terms as contained in the Capital Raising Notice, then the Representative shall notify the Company, which notice shall describe the terms of such proposal in reasonable detail, including any and all fees required to be incurred in connection with the issuance and sale of the Offered Securities (the "PURCHASER PROPOSALPurchaser Proposal"). As soon as reasonably practical following the Company's notice of such Purchaser Proposal, the Company's Board of Directors shall review and consider in good faith the Purchaser Proposal and make a determination as to whether to approve the Purchaser Proposal, which determination shall consider whether the terms of, and all fees that may be incurred by the Company in connection with, the issuance and sale of the Offered Securities are customary for a transaction of this nature. Any such determination by the Company's Board of Directors shall also be subject to the fiduciary duties and obligations of the Company's Board of Directors. If the Representative fails to submit, fails to close or the Company's Board of Directors fails to approve the Purchaser Proposal on or before the expiration of the Exclusivity Period in accordance with the terms and conditions of this Section 3.9, then the Company may offer and sell the Offered Securities to one or more third parties upon similar terms specified in the Capital Raising Notice without any obligation to submit another Capital Raising Notice to the Representative.
(c) The Company agrees that if the Company receives a bona fide offer for the issuance and sale of Company's debt or equity securities in a capital raising transaction during the period commencing on the Subscription Date and ending on June 30, 2005 (a "THIRD PARTY OFFERThird Party Offer"), and such Third Party Offer, when aggregated with all other sales of the Company's debt or equity securities in a capital raising transaction during such period, exceeds $1,000,000, then the Representative shall have the right, but not the obligation, to submit a proposal to purchase the Company's debt or equity securities by the Representative or syndicate of investors arranged by the Representative on terms and conditions more favorable to the Company than contained in the Third Party Offer. Any such proposal by the Representative shall be submitted to the Company within a reasonable period of time after the Company notifies the Representative of the Third Party Offer. The Company's Board of Directors shall review and consider in good faith any such proposal submitted by the Representative and make a determination as to whether to approve such proposal.
(d) The Purchasers' and the Representative's rights and the Company's obligations under this Section 3.13 shall be subject to, and may be exercised only to the extent not in conflict with or violation of, the rights of Westminster Securities Corp. pursuant to the Company's agreement with Westminster Securities Corp. in effect as of the Subscription Date. The Purchasers and the Representative understand and agree that this Section 3.13 shall in no event apply to (i) the private placement of securities with proceeds to the Company of up to $10,000,000 pursuant to which Bathgate Capital Partners LLC acts a placement agent, (ii) any determination to seek, negotiate or enter into a loan or credit facility (with no associated rights to receive, upon conversion of outstanding balances or otherwise, any securities of the Company) with a commercial bank or lender or (iii) the exercise or conversion of any securities of the Company outstanding as of the Subscription Date.
Appears in 1 contract
Samples: Stock Subscription Agreement (Far East Energy Corp)
Subsequent Offerings. Each Holder shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue for cash after the date of this Agreement, other than the Equity Securities excluded by Section 16.7 hereof; provided, however, that such Holder shall be, at the time of the offer of such Equity Securities, an “accredited investor” as such term is defined under Rule 501(a) promulgated under the Securities Act (or such other investor suitability standards required under the exemption from registration of the securities offered relied upon by the Company, as determined by the Company and its counsel) and shall have provided to the Company with evidence reasonably satisfactory to the Company that such Holder is an “accredited investor” or otherwise meets the required investor suitability standards. Each Holder’s pro rata share is equal to the ratio of (a) For a period the number of eighteen months following the Subscription Date, if the Company's Board of Directors determines to pursue an offering of debt Common Shares (including all Common Shares issued or equity securities issuable upon conversion of the Company in Preferred Shares) which such Holder is deemed to be a capital raising transaction (a "PROPOSED OFFERING"), then holder immediately prior to its commencement, the Company will notify the Representative issuance of such Proposed Offering Equity Securities to (a "CAPITAL RAISING NOTICE"). The Capital Raising Notice shall include b) the type total number of debt or equity securities to be offered, the aggregate amount intended to be raised in the Proposed Offering or a range thereof and such other terms as the Board of Directors may reasonably determine to be necessary or appropriate taking into account prevailing market conditions (the "OFFERED SECURITIES"). The Representative shall have the exclusive right during the forty-five (45) day period following the date shares of the Company's ’s Fully Diluted Common immediately prior to the issuance of the Capital Raising Notice Equity Securities. The term “Equity Securities” shall mean (the "EXCLUSIVITY PERIOD"i) to consummate the purchase of all any Common Shares, Preferred Shares or a part of the Offered Securities by one or more of the Purchasers or a syndicate of investors arranged by the Representative, in each case, subject to the terms and conditions set forth in the Capital Raising Notice. Notwithstanding anything contained herein to the contrary, during the Exclusivity Period, the Company shall have the right to discuss the terms of the Proposed Offering with placement agents, financial advisors, underwriters and finders ("FUNDRAISERS"); provided that in no event may the Company enter into an agreement binding upon the Company with respect to the Proposed Offering (other than confidentiality agreements) with such Fundraisers during the Exclusivity Period.
(b) During the Exclusivity Period, if the Representative shall provide the Company with a proposal to purchase all or a portion of the Offered Securities upon similar terms as contained in the Capital Raising Notice, then the Representative shall notify the Company, which notice shall describe the terms of such proposal in reasonable detail, including any and all fees required to be incurred in connection with the issuance and sale of the Offered Securities (the "PURCHASER PROPOSAL"). As soon as reasonably practical following the Company's notice of such Purchaser Proposal, the Company's Board of Directors shall review and consider in good faith the Purchaser Proposal and make a determination as to whether to approve the Purchaser Proposal, which determination shall consider whether the terms of, and all fees that may be incurred by the Company in connection with, the issuance and sale of the Offered Securities are customary for a transaction of this nature. Any such determination by the Company's Board of Directors shall also be subject to the fiduciary duties and obligations equity security of the Company's Board of Directors. If the Representative fails to submit, fails to close or the Company's Board of Directors fails to approve the Purchaser Proposal on or before the expiration of the Exclusivity Period in accordance with the terms and conditions of this Section 3.9, then the Company may offer and sell the Offered Securities to one or more third parties upon similar terms specified in the Capital Raising Notice without any obligation to submit another Capital Raising Notice to the Representative.
(c) The Company agrees that if the Company receives a bona fide offer for the issuance and sale of Company's debt or equity securities in a capital raising transaction during the period commencing on the Subscription Date and ending on June 30, 2005 (a "THIRD PARTY OFFER"), and such Third Party Offer, when aggregated with all other sales of the Company's debt or equity securities in a capital raising transaction during such period, exceeds $1,000,000, then the Representative shall have the right, but not the obligation, to submit a proposal to purchase the Company's debt or equity securities by the Representative or syndicate of investors arranged by the Representative on terms and conditions more favorable to the Company than contained in the Third Party Offer. Any such proposal by the Representative shall be submitted to the Company within a reasonable period of time after the Company notifies the Representative of the Third Party Offer. The Company's Board of Directors shall review and consider in good faith any such proposal submitted by the Representative and make a determination as to whether to approve such proposal.
(d) The Purchasers' and the Representative's rights and the Company's obligations under this Section 3.13 shall be subject to, and may be exercised only to the extent not in conflict with or violation of, the rights of Westminster Securities Corp. pursuant to the Company's agreement with Westminster Securities Corp. in effect as of the Subscription Date. The Purchasers and the Representative understand and agree that this Section 3.13 shall in no event apply to (i) the private placement of securities with proceeds to the Company of up to $10,000,000 pursuant to which Bathgate Capital Partners LLC acts a placement agent, (ii) any determination equity security convertible, with or without consideration, into any Common Shares, Preferred Shares or other equity security (including any option to seekpurchase such a convertible security), negotiate (iii) any security carrying any warrant or enter into right to subscribe to or purchase any Common Shares, Preferred Shares or other equity security or (iv) any such warrant or right. For purposes of calculating a loan or credit facility (with no associated rights Holder’s pro rata share pursuant to receivethis Section 16.1, upon conversion the number of outstanding balances or otherwise, any securities shares of the Company’s Common Shares which such Holder is deemed to hold may, at the election of such Holder, include shares held by any entity affiliated with such Holder, provided that, if such affiliated entity is also a Holder, such shares shall only be counted once in such pro rata calculation, such that the shares are included for only one such Holder. The term “Fully Diluted Common” shall mean the sum of (i) with a commercial bank or lender or the number of Common Shares outstanding immediately prior to such issuance, plus (ii) the number of Common Shares into which any Preferred Shares outstanding immediately prior to such issuance may be converted at the applicable conversion price then in effect, plus (iii) the exercise number of Common Shares for which any options to purchase, rights to subscribe, other warrants or conversion of derivative equity securities are outstanding or authorized by any securities duly adopted stock option plan or other plan or agreement of the Company prior to such issuance, plus (iv) the number of Common Shares into which any other convertible or exchangeable equity securities outstanding as of the Subscription Dateimmediately prior to such issuance may be converted or exchanged.
Appears in 1 contract
Samples: Investors Rights Agreement (Oculus Innovative Sciences, Inc.)
Subsequent Offerings. The Company agrees that any of Credit Suisse Securities (aUSA) For a period LLC, Citi, Banc of eighteen months following America Securities LLC, UBS Securities LLC, Xxxxx, Xxxxxxxx & Xxxxx, Inc. and Dresdner Kleinwort Securities LLC (the Subscription Date“Backstop Providers”) may request, if the Company's Board of Directors determines to pursue an offering of debt or equity securities of the Company in a capital raising transaction (a "PROPOSED OFFERING"), then prior to its commencementand upon such request, the Company will notify shall promptly provide, at any time that any such party wishes to resell the Representative shares of common stock purchased by such Proposed Offering party pursuant to this Agreement that are not resold by such party on the First Closing Date (a "CAPITAL RAISING NOTICE"an “Underwriter Unsold Allotment”). The Capital Raising Notice shall include the type of debt or equity securities to be offered, upon reasonable notice, the aggregate amount intended to be raised following:
(i) within fifteen (15) days of the request, preparation and filing with the Commission of preliminary and final prospectuses, and in the Proposed Offering event the requesting party could be deemed an Affiliate of the Company, a new automatic shelf registration statement (or in the event the Company is no longer qualified to file an automatic shelf registration statement, then a range thereof shelf registration statement) which would allow such resale, and any necessary updates thereto, each in form and substance satisfactory to the requesting party, in order to register the offer and sale of the relevant Underwriter Unsold Allotment being resold at such other terms as time;
(ii) either (x) repetition that all representations and warranties contained in Section 2 of this Agreement remain true and correct in all material respects (except to the Board of Directors may reasonably determine to extent representations and warranties contained herein are qualified by materiality, in which case such representations and warranties shall be necessary or appropriate taking into account prevailing market conditions (the "OFFERED SECURITIES"). The Representative shall have the exclusive right during the forty-five (45true and correct in all respects) day period following both at the date of the Company's issuance final prospectus associated with such resale as well as on the closing date associated with such resale, or (y) upon the request of the Capital Raising Notice party seeking to resell, entry into an underwriting agreement substantially similar to this Agreement in connection with the resale of such requester’s Underwriter Unsold Allotment;
(iii) delivery of customary legal opinions and negative assurance letters of internal and nationally recognized outside counsel to the "EXCLUSIVITY PERIOD") Company, and customary officers’, secretaries’ and other certificates from the Company, addressed to consummate such requesting party, and dated the purchase date of the closing of such resale of all or a part of such party’s Underwriter Unsold Allotment, each in form and substance satisfactory to the Offered Securities by one requesting party;
(iv) causing KPMG LLP (or more its successor outside independent auditor of the Purchasers Company) to provide letters in form and substance satisfactory to the requesting party, dated, respectively, the respective date on which time of sale for such resale of the relevant portion of such Underwriter Unsold Allotment occurs and on each Closing Date, from KPMG LLP (or a syndicate of investors arranged by the Representativeits successor outside independent auditor), in each case, subject form and substance satisfactory to the terms requesting party, confirming that KPMG LLP (or its successor outside independent auditor) is a registered public accounting firm and conditions set forth in independent public accountants within the Capital Raising Notice. Notwithstanding anything contained herein to the contrary, during the Exclusivity Period, the Company shall have the right to discuss the terms meaning of the Proposed Offering with placement agents, financial advisors, Securities Laws and containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters and finders ("FUNDRAISERS"); provided that in no event may the Company enter into an agreement binding upon the Company with respect to the Proposed Offering financial statements and certain financial information contained in the applicable Registration Statement, the General Disclosure Package and the Final Prospectus for such resale;
(other than confidentiality agreementsv) providing an opportunity for such party to conduct a due diligence investigation into the Company and providing full cooperation (at the Company’s expense) with such Fundraisers during due diligence investigation; the Exclusivity Period.
(b) During the Exclusivity Period, if the Representative shall provide the Company with a proposal to purchase all or a portion due diligence investigation and level of the Offered Securities upon similar terms as contained in the Capital Raising Notice, then the Representative shall notify the Company, which notice shall describe the terms of such proposal in reasonable detail, including any and all fees cooperation required to be incurred in connection with the issuance and sale of the Offered Securities (the "PURCHASER PROPOSAL"). As soon as reasonably practical following the Company's notice of such Purchaser Proposal, the Company's Board of Directors shall review and consider in good faith the Purchaser Proposal and make a determination as to whether to approve the Purchaser Proposal, which determination shall consider whether the terms of, and all fees that may be incurred by the Company in connection with, the issuance and sale of the Offered Securities are customary for a transaction of this nature. Any such determination by the Company's Board of Directors shall also be subject to the fiduciary duties and obligations of the Company's Board of Directors. If the Representative fails to submit, fails to close or the Company's Board of Directors fails to approve the Purchaser Proposal on or before the expiration of the Exclusivity Period in accordance with the terms and conditions of this Section 3.9, then the Company may offer and sell the Offered Securities to one or more third parties upon similar terms specified in the Capital Raising Notice without any obligation to submit another Capital Raising Notice to the Representative.
(c) The Company agrees that if the Company receives a bona fide offer for the issuance and sale of Company's debt or equity securities in a capital raising transaction during the period commencing on the Subscription Date and ending on June 30, 2005 (a "THIRD PARTY OFFER"), and such Third Party Offer, when aggregated with all other sales of the Company's debt or equity securities in a capital raising transaction during such period, exceeds $1,000,000, then the Representative shall have the right, but not the obligation, to submit a proposal to purchase the Company's debt or equity securities by the Representative or syndicate of investors arranged by the Representative on terms and conditions more favorable to the Company than contained in the Third Party Offer. Any such proposal by the Representative subsection shall be submitted to the Company within a reasonable period such as would be customarily undertaken by underwriters in an underwritten public offering of time after the Company notifies the Representative of the Third Party Offer. The Company's Board of Directors shall review and consider in good faith any such proposal submitted by the Representative and make a determination as to whether to approve such proposal.
(d) The Purchasers' and the Representative's rights and the Company's obligations under this Section 3.13 shall be subject to, and may be exercised only to the extent not in conflict with or violation of, the rights of Westminster Securities Corp. pursuant to the Company's agreement with Westminster Securities Corp. in effect as of the Subscription Date. The Purchasers and the Representative understand and agree that this Section 3.13 shall in no event apply to (i) the private placement of securities with proceeds to the Company of up to $10,000,000 pursuant to which Bathgate Capital Partners LLC acts a placement agent, (ii) any determination to seek, negotiate or enter into a loan or credit facility (with no associated rights to receive, upon conversion of outstanding balances or otherwise, any securities of the Company) with a commercial bank or lender or (iii) the exercise or conversion , including without limitation making members of any securities management, financial and accounting officers and other employees, counsel, auditors and agents of the Company outstanding promptly available to such requesting party and its advisors, promptly committing such time and other resources, and promptly providing such corporate records, agreements and other documents and materials, in each case as is reasonably requested by such requesting party and as would be customary for an underwriter to receive in an underwriting public offering of the Subscription Datesecurities; and
(vi) otherwise providing reasonable assistance to the requesting party, including, without limitation, the attendance by employees and personnel of the Company at “road show” presentations to potential purchasers of the such Underwriter Unsold Allotment, and furnishing such information and due diligence material as the requesting party or its counsel shall reasonably request. The obligations of the Company set forth in or made pursuant to this Section 5(q) will remain in full force and effect until each of the Backstop Providers has notified the Company in writing that such party’s Underwriter Unsold Allotment has been completely resold.
Appears in 1 contract
Subsequent Offerings. (a) For a period of eighteen months following In the Subscription Date, if the Company's Board of Directors determines to pursue an offering of debt or equity securities of event the Company or TEC shall sell or issue any Covered Equity Securities (as defined below), each Investor who represents to the Company or TEC, as applicable, that it is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act of 1933, as amended (the “Act”) or the analogous law in a capital raising transaction non-U.S. jurisdiction (a "PROPOSED OFFERING"), then prior to its commencement, the Company will notify the Representative of such Proposed Offering (a "CAPITAL RAISING NOTICE"). The Capital Raising Notice shall include the type of debt or equity securities to be offered, the aggregate amount intended to be raised in the Proposed Offering or a range thereof and such other terms as the Board of Directors may reasonably determine to be necessary or appropriate taking into account prevailing market conditions (the "OFFERED SECURITIES"). The Representative shall have the exclusive right during the forty-five (45“Qualifying Investor”) day period following the date of the Company's issuance of the Capital Raising Notice (the "EXCLUSIVITY PERIOD") to consummate the purchase of all or a part of the Offered Securities by one or more of the Purchasers or a syndicate of investors arranged by the Representative, in each case, subject to the terms and conditions set forth in the Capital Raising Notice. Notwithstanding anything contained herein to the contrary, during the Exclusivity Period, the Company shall have the right to discuss purchase for its pro rota share (as calculated below) of such Covered Equity Securities on the same terms and conditions as such Equity Securities are being offered and sold, such purchase being conditioned upon the actual sale of such Covered Equity Securities. Subject to compliance with applicable securities laws, an Investor shall be entitled to apportion the right of first refusal hereby granted to it among itself and its affiliates (defined to be, with respect to any person, another person that directly or indirectly controls, or is controlled by, or is under common control with such person) in such proportions as it deems appropriate. No later than 30 days prior to the contemplated date such Covered Equity Securities are to be sold, the Company or TEC, as applicable, shall deliver a written notice (the “Offer Notice”) to each Qualifying Investor, which Offer Notice shall set forth (i) the terms of the Proposed Offering with placement agents, financial advisors, underwriters and finders proposed sale or issuance ("FUNDRAISERS"); provided that in no event may the Company enter into an agreement binding upon the Company with respect to the Proposed Offering (other than confidentiality agreements) with such Fundraisers during the Exclusivity Period.
(b) During the Exclusivity Period, if the Representative shall provide the Company with including a proposal to purchase all or a portion of the Offered Securities upon similar terms as contained in the Capital Raising Notice, then the Representative shall notify the Company, which notice shall describe the terms description of such proposal in reasonable detail, including any and all fees required to be incurred in connection with the issuance and sale of the Offered Securities (the "PURCHASER PROPOSAL"). As soon as reasonably practical following the Company's notice of such Purchaser ProposalCovered Equity Securities, the Company's Board of Directors shall review price and consider in good faith the Purchaser Proposal and make a determination as to whether to approve the Purchaser Proposal, which determination shall consider whether the terms of, and all fees that may be incurred by the Company in connection with, the issuance and sale of the Offered Securities are customary for a transaction of this nature. Any such determination by the Company's Board of Directors shall also be subject to the fiduciary duties and obligations of the Company's Board of Directors. If the Representative fails to submit, fails to close or the Company's Board of Directors fails to approve the Purchaser Proposal on or before the expiration of the Exclusivity Period in accordance with the terms and conditions upon which the Company or TEC, as applicable, proposes to issue the same), and (ii) the contemplated date such Covered Equity Securities are to be sold. Each Qualifying Investor shall have 20 days from the delivery of the Offer Notice to elect to exercise the rights granted pursuant to this Section 3.9, then 2.1 by providing written notice to the Company may offer and sell or TEC, as applicable, setting forth the Offered amount of Covered Equity Securities (up to one or more third parties upon similar terms such Qualifying Investor’s pro rata share, as calculated below) it is electing to purchase, which written notice shall constitute an irrevocable obligation of such electing Qualifying Investor to purchase the Covered Equity Securities specified in its notice, provided the referenced sale takes place no later than 90 days after the contemplated sale date specified in the Capital Raising Notice without any obligation to submit another Capital Raising Notice Offer Notice. If no such written notice is received by the Company or TEC, as applicable, prior to the Representative.
(c) The Company agrees that if the Company receives a bona fide offer for the issuance and sale expiration of Company's debt or equity securities in a capital raising transaction during the period commencing on the Subscription Date and ending on June 30, 2005 (a "THIRD PARTY OFFER"), and such Third Party Offer, when aggregated with all other sales of the Company's debt or equity securities in a capital raising transaction during such 20-day period, exceeds $1,000,000, then the Representative such Qualifying Investor’s rights pursuant to this Section 2.1 shall have the rightbeen waived for that, but not only for that, transaction, provided the obligation, to submit a proposal to purchase referenced sale takes place no later than 90 days after the Company's debt or equity securities by the Representative or syndicate of investors arranged by the Representative on terms and conditions more favorable to the Company than contained contemplated sale date specified in the Third Party OfferOffer Notice. Any such proposal Covered Equity Securities sold by the Representative Company or TEC, as applicable, after such 90-day period must be reoffered to the Qualifying Investors pursuant to this Section 2.1. Each Qualifying Investor’s “pro rota share” of Covered Equity Securities being offered in a sale pursuant to Section 2.1 shall be submitted calculated as follows: Investor’s % x Covered Equity Securities = pro rata share Where: “Investor’s %” = a fraction (expressed as a percentage), (x) the numerator of which is the number of Warrant Securities held by such Qualifying Investor and (y) the denominator of which is equal to the Company within a reasonable period of time after the Company notifies the Representative of the Third Party Offer. The Company's Board of Directors shall review and consider in good faith any such proposal submitted by the Representative and make a determination as to whether to approve such proposal.
(d) The Purchasers' and the Representative's rights and the Company's obligations under this Section 3.13 shall be subject tonumber, and may be exercised only to the extent not in conflict with or violation of, the rights of Westminster Securities Corp. pursuant to the Company's agreement with Westminster Securities Corp. in effect as of the Subscription Date. The Purchasers and the Representative understand and agree that this Section 3.13 shall in no event apply to date of an Offer Notice (i) the private placement of securities with proceeds to the Company of up to $10,000,000 pursuant to which Bathgate Capital Partners LLC acts a placement agentas such term is defined below), (ii) any determination to seek, negotiate or enter into a loan or credit facility (with no associated rights to receive, upon conversion of outstanding balances or otherwise, any securities of the Company) with a commercial bank or lender or (iii) the exercise or conversion of any securities of the Company outstanding as of the Subscription DateEffectively Outstanding Common Equity.
Appears in 1 contract
Samples: Right of First Refusal Agreement (Trident Resources Corp)
Subsequent Offerings. (a) For a period of eighteen months following On or before the Subscription Closing Date, if the Company's Board Purchasers shall have a right of Directors determines first refusal to pursue an participate on a pro rata basis, in accordance with their respective subscriptions to the Purchase Price, in any offering of debt or equity securities of (“Subsequent Offering”) by the Company of (i) equity or equity-linked securities, or (ii) debt which is convertible into equity or in a capital raising transaction which there is an equity component (a "PROPOSED OFFERING"“Additional Securities”) on the same terms and conditions as offered by the Company to the other purchasers of such Additional Securities, or, if offered solely to the Purchasers, on terms and conditions agreeable to the Company and the Purchasers. At the option of each Purchaser, such Purchaser’s subscription to purchase Units pursuant to this Agreement shall be reduced dollar for dollar to the extent of such Purchaser’s participation in any Subsequent Offering, provided, however, in such event, the funds invested in the Subsequent Offering shall be set aside and designated by the Company for use pursuant to Section 4(d). If the total subscription amount for Units has been reduced to zero pursuant to this Section 4(r), then prior to its commencementthis Agreement shall terminate and be of no further force and effect. Notwithstanding the foregoing, the Company will notify participation rights granted in this Section 4(r) shall not be applicable to: (A) the Representative issuance of such Proposed Offering (a "CAPITAL RAISING NOTICE"). The Capital Raising Notice shall include shares of Common Stock upon the type of debt exercise or equity securities to be offered, the aggregate amount intended to be raised in the Proposed Offering or a range thereof and such other terms as the Board of Directors may reasonably determine to be necessary or appropriate taking into account prevailing market conditions (the "OFFERED SECURITIES"). The Representative shall have the exclusive right during the forty-five (45) day period following the date conversion of the Company's issuance ’s options, warrants or other securities outstanding as of the Capital Raising Notice (the "EXCLUSIVITY PERIOD") to consummate the purchase of all or a part of the Offered Securities by one or more of the Purchasers or a syndicate of investors arranged by the Representative, in each case, subject to the terms and conditions set forth in the Capital Raising Notice. Notwithstanding anything contained herein to the contrary, during the Exclusivity Period, the Company shall have the right to discuss the terms of the Proposed Offering with placement agents, financial advisors, underwriters and finders ("FUNDRAISERS"); provided that in no event may the Company enter into an agreement binding upon the Company with respect to the Proposed Offering (other than confidentiality agreements) with such Fundraisers during the Exclusivity Period.
(b) During the Exclusivity Period, if the Representative shall provide the Company with a proposal to purchase all or a portion of the Offered Securities upon similar terms as contained in the Capital Raising Notice, then the Representative shall notify the Company, which notice shall describe the terms of such proposal in reasonable detail, including any and all fees required to be incurred in connection with the issuance and sale of the Offered Securities (the "PURCHASER PROPOSAL"). As soon as reasonably practical following the Company's notice of such Purchaser Proposal, the Company's Board of Directors shall review and consider in good faith the Purchaser Proposal and make a determination as to whether to approve the Purchaser Proposal, which determination shall consider whether the terms of, and all fees that may be incurred by the Company in connection with, the issuance and sale of the Offered Securities are customary for a transaction of this nature. Any such determination by the Company's Board of Directors shall also be subject to the fiduciary duties and obligations of the Company's Board of Directors. If the Representative fails to submit, fails to close or the Company's Board of Directors fails to approve the Purchaser Proposal on or before the expiration of the Exclusivity Period date hereof in accordance with the terms and conditions of this Section 3.9such options or warrants or other securities as in effect on the date hereof; (B) the grant of options to purchase Common Stock, then with exercise prices not less than the market price of the Common Stock on the date of grant, which are issued to employees, officers, directors or consultants of the Company may offer and sell the Offered Securities to one or more third parties upon similar terms specified in the Capital Raising Notice without any obligation to submit another Capital Raising Notice to the Representative.
(c) The Company agrees that if the Company receives a bona fide offer for the issuance and sale primary purpose of soliciting or retaining their employment or service pursuant to an equity compensation plan approved by the Company's debt or equity securities in a capital raising transaction during the period commencing on the Subscription Date and ending on June 30, 2005 (a "THIRD PARTY OFFER")’s Board of Directors, and such Third Party Offer, when aggregated with all other sales the issuance of shares of Common Stock upon the exercise thereof; (C) the issuance of the Company's debt or equity securities in a capital raising transaction during such periodPreferred Stock, exceeds $1,000,000, then the Representative shall have the right, but not the obligation, to submit a proposal to purchase the Company's debt or equity securities by the Representative or syndicate of investors arranged by the Representative on terms and conditions more favorable to the Company than contained in the Third Party Offer. Any such proposal by the Representative shall be submitted to the Company within a reasonable period of time after the Company notifies the Representative of the Third Party Offer. The Company's Board of Directors shall review and consider in good faith any such proposal submitted by the Representative and make a determination as to whether to approve such proposal.
(d) The Purchasers' Warrants and the Representative's rights and the Company's obligations under this Section 3.13 shall be subject to, and may be exercised only to the extent not in conflict with or violation ofAmended Warrants pursuant hereto, the rights of Westminster Securities Corp. pursuant to the Company's agreement with Westminster Securities Corp. in effect as of the Subscription Date. The Purchasers and the Representative understand and agree that this Section 3.13 shall in no event apply to (i) the private placement of securities with proceeds to the Company of up to $10,000,000 pursuant to which Bathgate Capital Partners LLC acts a placement agent, (ii) any determination to seek, negotiate or enter into a loan or credit facility (with no associated rights to receive, Conversion Shares upon conversion of outstanding balances or otherwise, any securities the Preferred Stock and the Warrant Shares upon exercise of the CompanyWarrants; (D) issuances of Common Stock, or warrants or options exercisable for Common Stock, in connection with a commercial bank strategic arrangement or lender alliance to building licensors, landlords, carriers, joint venture partners, vendors, consultants, lessors or lenders, or issued in connection with acquisitions so long as such issuances are not for the purpose of raising capital; (E) issuances of Common Stock, or warrants or options exercisable for Common Stock, in connection with strategic license agreements so long as such issuances are not for the purpose of raising capital; (F) issuances of Common Stock, or warrants or options exercisable for Common Stock, to acquisition candidates; (G) issuances of Common Stock, or warrants or options exercisable for Common Stock, for fees paid to an investment banker or advisor; (H) issuances of Common Stock, or warrants or options exercisable for Common Stock, in public secondary offerings; or (iiiI) issuances or deemed issuances of Common Stock, or warrants or options exercisable for Common Stock, in connection with a repricing or adjustment to the exercise or conversion price of any securities outstanding options or warrants outstanding on the Closing Date, provided, however, that the number of shares of Common Stock issued or exercisable pursuant to subsections D through I above shall not exceed 5,000,000 in the Company outstanding as of the Subscription Dateaggregate.
Appears in 1 contract
Samples: Securities Purchase Agreement (Fibernet Telecom Group Inc\)
Subsequent Offerings. Subject to the terms and conditions specified in this Section 3.1 and applicable securities laws, in the event the Company issues any New Securities, the Company shall, prior to such issuance, make an offering of such New Securities to the Investor in accordance with the following provisions of this Section 3.1.
(a) For The Company shall deliver a period of eighteen months following notice (the Subscription Date“Offer Notice”) to the Investor stating (i) its intent to issue New Securities, if (ii) the Company's Board of Directors determines to pursue an offering of debt or equity securities of the Company in a capital raising transaction (a "PROPOSED OFFERING"), then prior to its commencement, the Company will notify the Representative number of such Proposed Offering (a "CAPITAL RAISING NOTICE"). The Capital Raising Notice shall include the type of debt or equity securities New Securities to be offered, and (iii) the aggregate amount intended price and terms upon which it proposes to be raised offer such New Securities.
(b) By written notification received by the Company, within ten (10) Business Days after receipt of the Offer Notice, the Investor may elect to purchase or obtain, at the price and on the terms specified in the Proposed Offering or Offer Notice, not less than that portion of such New Securities which equals the proportion that the number of shares of Common Stock (including the number of shares of Common Stock into which the Investor’s shares of Preferred Stock could be converted) then held by the Investor bears to the total number of shares of Common Stock of the Company then outstanding (on a range thereof and such other terms as the Board of Directors may reasonably determine to be necessary or appropriate taking into account prevailing market conditions Fully Diluted Basis) (the "OFFERED SECURITIES"“Proportionate Share”). The Representative shall have .
(c) If the exclusive right Investor elects not to purchase or obtain at least its Proportionate Share of all New Securities referred to in the Offer Notice as provided in Section 3.1(b) hereof, the Company may, during the forty-five sixty (4560) day period following the date expiration of the Company's issuance of period provided in Section 3.1(b) hereof, offer such New Securities (collectively, the Capital Raising Notice (the "EXCLUSIVITY PERIOD"“Refused Securities”) to consummate the purchase of all or any Person at a part of the Offered Securities by one or price not less than, and upon terms no more of the Purchasers or a syndicate of investors arranged by the Representative, in each case, subject favorable to the terms and conditions set forth offeree than, those specified in the Capital Raising Offer Notice. Notwithstanding anything contained herein to the contrary, during the Exclusivity Period, If the Company shall have the right to discuss the terms of the Proposed Offering with placement agents, financial advisors, underwriters and finders ("FUNDRAISERS"); provided that in no event may the Company does not enter into an agreement binding upon for the Company with respect to the Proposed Offering (other than confidentiality agreements) with such Fundraisers during the Exclusivity Period.
(b) During the Exclusivity Period, if the Representative shall provide the Company with a proposal to purchase all or a portion of the Offered Securities upon similar terms as contained in the Capital Raising Notice, then the Representative shall notify the Company, which notice shall describe the terms of such proposal in reasonable detail, including any and all fees required to be incurred in connection with the issuance and sale of the Offered New Securities within such period, or if such agreement is not consummated within sixty (60) days of the "PURCHASER PROPOSAL"). As soon as reasonably practical following execution thereof, the Company's notice right provided hereunder shall be deemed to be revived and the Company shall offer the Investor the right to purchase at least its Proportionate Share of such Purchaser Proposal, the Company's Board of Directors shall review and consider in good faith the Purchaser Proposal and make a determination as to whether to approve the Purchaser Proposal, which determination shall consider whether the terms of, and all fees that may be incurred by the Company in connection with, the issuance and sale of the Offered New Securities are customary for a transaction of this nature. Any such determination by the Company's Board of Directors shall also be subject to the fiduciary duties and obligations of the Company's Board of Directors. If the Representative fails to submit, fails to close or the Company's Board of Directors fails to approve the Purchaser Proposal on or before the expiration of the Exclusivity Period in accordance with the terms and conditions of this Section 3.9, then the Company may offer and sell the Offered Securities to one or more third parties upon similar terms specified in the Capital Raising Notice without any obligation to submit another Capital Raising Notice to the Representative.
(c) The Company agrees that if the Company receives a bona fide offer for the issuance and sale of Company's debt or equity securities in a capital raising transaction during the period commencing on the Subscription Date and ending on June 30, 2005 (a "THIRD PARTY OFFER"), and such Third Party Offer, when aggregated with all other sales of the Company's debt or equity securities in a capital raising transaction during such period, exceeds $1,000,000, then the Representative shall have the right, but not the obligation, to submit a proposal to purchase the Company's debt or equity securities by the Representative or syndicate of investors arranged by the Representative on terms and conditions more favorable to the Company than contained in the Third Party Offer. Any such proposal by the Representative shall be submitted to the Company within a reasonable period of time after the Company notifies the Representative of the Third Party Offer. The Company's Board of Directors shall review and consider in good faith any such proposal submitted by the Representative and make a determination as to whether to approve such proposal3.1.
(d) The Purchasers' and the Representative's rights and the Company's obligations under Investor’s right to maintain ownership as provided in this Section 3.13 3.1 shall not be subject to, and may be exercised only to the extent not in conflict with or violation of, the rights of Westminster Securities Corp. pursuant to the Company's agreement with Westminster Securities Corp. in effect as of the Subscription Date. The Purchasers and the Representative understand and agree that this Section 3.13 shall in no event apply applicable to (i) the private placement of any securities with proceeds to be issued to employees, officers or directors of, or consultants or advisors to, the Company of up to $10,000,000 pursuant to which Bathgate Capital Partners LLC acts stock purchase or stock option plans or other arrangements that are for purposes of compensation to such person in their capacity as employees, officers, directors, consultants or advisors and are approved by the Board, subject to a placement agentmaximum of the lower of (x) 4,000,000 shares of Common Stock (as adjusted by stock dividends, splits, subdivisions or combinations of shares and on an as-converted basis) and (y) 10% of the outstanding shares of Common Stock (determined on a Fully Diluted Basis), (ii) any determination to seek, negotiate or enter into a loan or credit facility (with no associated rights to receive, upon conversion of outstanding balances or otherwise, any securities of the Company) with a commercial bank any class or lender series issued or (iii) the exercise to be issued pursuant to any convertible debentures, options or conversion of any securities of the Company warrants outstanding as of the Subscription Datedate of the Joint Development Agreement; (iii) any securities of any class or series issued or to be issued pursuant to the conversion or exercise of any securities issued in connection with the Joint Development Agreement; (iv) any securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination, subject to a maximum of the lower of (x) 2,000,000 shares of Common Stock (as adjusted by stock dividends, splits, subdivisions or combinations of shares and on an as-converted basis) and (y) 5% of the outstanding shares of Common Stock (determined on a Fully Diluted Basis); or (v) any securities issued in connection with any stock split, stock dividend, recapitalization or similar transaction by the Company ; provided, however, the exceptions to Section 3.1 contained in clause (i) and clause (iv) of this paragraph shall no longer be available to the Company if, after the date hereof, the Company issues Limited Issuance Shares (as defined below) in an aggregate amount equal to or greater than the lower of (x) 5,000,000 shares of Common Stock (as adjusted by stock dividends, splits, subdivisions or combinations of shares and on an as-converted basis) and (y) 12.5% of the outstanding shares of Common Stock (determined on a Fully Diluted Basis).
Appears in 1 contract
Subsequent Offerings. Each Holder shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue for cash after the date of this Agreement, other than the Equity Securities excluded by Section 16.7 hereof; provided, however, that such Holder shall be, at the time of the offer of such Equity Securities, an “accredited investor” as such term is defined under Rule 501(a) promulgated under the Securities Act and shall have provided to the Company with evidence reasonably satisfactory to the Company that such Holder is an “accredited investor.” Each Holder’s pro rata share is equal to the ratio of (a) For a period the number of eighteen months following the Subscription Date, if the Company's Board of Directors determines to pursue an offering of debt Common Shares (including all Common Shares issued or equity securities issuable upon conversion of the Company in Preferred Shares) which such Holder is deemed to be a capital raising transaction (a "PROPOSED OFFERING"), then holder immediately prior to its commencement, the Company will notify the Representative issuance of such Proposed Offering Equity Securities to (a "CAPITAL RAISING NOTICE"). The Capital Raising Notice shall include b) the type total number of debt or equity securities to be offered, the aggregate amount intended to be raised in the Proposed Offering or a range thereof and such other terms as the Board of Directors may reasonably determine to be necessary or appropriate taking into account prevailing market conditions (the "OFFERED SECURITIES"). The Representative shall have the exclusive right during the forty-five (45) day period following the date shares of the Company's ’s Fully Diluted Common immediately prior to the issuance of the Capital Raising Notice Equity Securities. The term “Equity Securities” shall mean (the "EXCLUSIVITY PERIOD"i) to consummate the purchase of all any Common Shares, Preferred Shares or a part of the Offered Securities by one or more of the Purchasers or a syndicate of investors arranged by the Representative, in each case, subject to the terms and conditions set forth in the Capital Raising Notice. Notwithstanding anything contained herein to the contrary, during the Exclusivity Period, the Company shall have the right to discuss the terms of the Proposed Offering with placement agents, financial advisors, underwriters and finders ("FUNDRAISERS"); provided that in no event may the Company enter into an agreement binding upon the Company with respect to the Proposed Offering (other than confidentiality agreements) with such Fundraisers during the Exclusivity Period.
(b) During the Exclusivity Period, if the Representative shall provide the Company with a proposal to purchase all or a portion of the Offered Securities upon similar terms as contained in the Capital Raising Notice, then the Representative shall notify the Company, which notice shall describe the terms of such proposal in reasonable detail, including any and all fees required to be incurred in connection with the issuance and sale of the Offered Securities (the "PURCHASER PROPOSAL"). As soon as reasonably practical following the Company's notice of such Purchaser Proposal, the Company's Board of Directors shall review and consider in good faith the Purchaser Proposal and make a determination as to whether to approve the Purchaser Proposal, which determination shall consider whether the terms of, and all fees that may be incurred by the Company in connection with, the issuance and sale of the Offered Securities are customary for a transaction of this nature. Any such determination by the Company's Board of Directors shall also be subject to the fiduciary duties and obligations equity security of the Company's Board of Directors. If the Representative fails to submit, fails to close or the Company's Board of Directors fails to approve the Purchaser Proposal on or before the expiration of the Exclusivity Period in accordance with the terms and conditions of this Section 3.9, then the Company may offer and sell the Offered Securities to one or more third parties upon similar terms specified in the Capital Raising Notice without any obligation to submit another Capital Raising Notice to the Representative.
(c) The Company agrees that if the Company receives a bona fide offer for the issuance and sale of Company's debt or equity securities in a capital raising transaction during the period commencing on the Subscription Date and ending on June 30, 2005 (a "THIRD PARTY OFFER"), and such Third Party Offer, when aggregated with all other sales of the Company's debt or equity securities in a capital raising transaction during such period, exceeds $1,000,000, then the Representative shall have the right, but not the obligation, to submit a proposal to purchase the Company's debt or equity securities by the Representative or syndicate of investors arranged by the Representative on terms and conditions more favorable to the Company than contained in the Third Party Offer. Any such proposal by the Representative shall be submitted to the Company within a reasonable period of time after the Company notifies the Representative of the Third Party Offer. The Company's Board of Directors shall review and consider in good faith any such proposal submitted by the Representative and make a determination as to whether to approve such proposal.
(d) The Purchasers' and the Representative's rights and the Company's obligations under this Section 3.13 shall be subject to, and may be exercised only to the extent not in conflict with or violation of, the rights of Westminster Securities Corp. pursuant to the Company's agreement with Westminster Securities Corp. in effect as of the Subscription Date. The Purchasers and the Representative understand and agree that this Section 3.13 shall in no event apply to (i) the private placement of securities with proceeds to the Company of up to $10,000,000 pursuant to which Bathgate Capital Partners LLC acts a placement agent, (ii) any determination equity security convertible, with or without consideration, into any Common Shares, Preferred Shares or other equity security (including any option to seekpurchase such a convertible security), negotiate (iii) any security carrying any warrant or enter into right to subscribe to or purchase any Common Shares, Preferred Shares or other equity security or (iv) any such warrant or right. For purposes of calculating a loan or credit facility (with no associated rights Holder’s pro rata share pursuant to receivethis Section 16.1, upon conversion the number of outstanding balances or otherwise, any securities shares of the Company’s Common Shares which such Holder is deemed to hold may, at the election of such Holder, include shares held by any entity affiliated with such Holder, provided that, if such affiliated entity is also a Holder, such shares shall only be counted once in such pro rata calculation, such that the shares are included for only one such Holder. The term “Fully Diluted Common” shall mean the sum of (i) with a commercial bank or lender or the number of Common Shares outstanding immediately prior to such issuance, plus (ii) the number of Common Shares into which any Preferred Shares outstanding immediately prior to such issuance may be converted at the applicable conversion price then in effect, plus (iii) the exercise number of Common Shares and Preferred Shares for which any options to purchase, rights to subscribe, warrants or conversion of other derivative equity securities are outstanding or authorized by any securities duly adopted stock option plan or other plan of the Company prior to such issuance, plus (iv) the number of Common Shares into which any other convertible or exchangeable securities, including convertible debt securities, outstanding as of the Subscription Dateimmediately prior to such issuance may be converted or exchanged.
Appears in 1 contract
Samples: Investors Rights Agreement (Oculus Innovative Sciences, Inc.)
Subsequent Offerings. The Company agrees that any of Credit Suisse Securities (aUSA) For a period LLC, Citi, Banc of eighteen months following America Securities LLC, UBS Securities, Xxxxx, Xxxxxxxx & Xxxxx, Inc. and Dresdner Kleinwort Securities LLC (the Subscription Date“Backstop Providers”) may request, if and upon such request the Company shall promptly provide, at any time that any such party wishes to resell the shares of common stock purchased by such party pursuant to the Common Stock Underwriting Agreement that are not resold by such party on the First Closing Date (an “Underwriter Unsold Allotment”), upon reasonable notice, the following:
(i) within fifteen (15) days of the request, preparation and filing with the Commission of preliminary and final prospectuses, and in the event the requesting party could be deemed an Affiliate of the Company's Board of Directors determines , a new automatic shelf registration statement (or in the event the Company is no longer qualified to pursue file an offering of debt or equity securities automatic shelf registration statement, then a shelf registration statement) which would allow such resale, and any necessary updates thereto, each in form and substance satisfactory to the requesting party, in order to register the offer and sale of the Company relevant Underwriter Unsold Allotment being resold at such time;
(ii) either (x) repetition that all representations and warranties contained in a capital raising transaction Section 2 of this Agreement remain true and correct in all material respects (a "PROPOSED OFFERING")except to the extent representations and warranties contained herein are qualified by materiality, then prior to its commencement, the Company will notify the Representative of in which case such Proposed Offering (a "CAPITAL RAISING NOTICE"). The Capital Raising Notice representations and warranties shall include the type of debt or equity securities to be offered, the aggregate amount intended to be raised true and correct in the Proposed Offering or a range thereof and such other terms as the Board of Directors may reasonably determine to be necessary or appropriate taking into account prevailing market conditions (the "OFFERED SECURITIES"). The Representative shall have the exclusive right during the forty-five (45all respects) day period following both at the date of the Company's issuance final prospectus associated with such resale as well as on the closing date associated with such resale, or (y) upon the request of the Capital Raising Notice party seeking to resell, entry into an underwriting agreement substantially similar to the Common Stock Underwriting Agreement in connection with the resale of such requester’s Underwriter Unsold Allotment;
(iii) delivery of customary legal opinions and negative assurance letters of internal and nationally recognized outside counsel to the "EXCLUSIVITY PERIOD") Company, and customary officers’, secretaries’ and other certificates from the Company, addressed to consummate such requesting party, and dated the purchase date of the closing of such resale of all or a part of such party’s Underwriter Unsold Allotment, each in form and substance satisfactory to the Offered Securities by one requesting party;
(iv) causing KPMG LLP (or more its successor outside independent auditor of the Purchasers Company) to provide letters in form and substance satisfactory to the requesting party, dated, respectively, the respective date on which time of sale for such resale of the relevant portion of such Underwriter Unsold Allotment occurs and on each Closing Date, from KPMG LLP (or a syndicate of investors arranged by the Representativeits successor outside independent auditor), in each case, subject form and substance satisfactory to the terms requesting party, confirming that KPMG LLP (or its successor outside independent auditor) is a registered public accounting firm and conditions set forth in independent public accountants within the Capital Raising Notice. Notwithstanding anything contained herein to the contrary, during the Exclusivity Period, the Company shall have the right to discuss the terms meaning of the Proposed Offering with placement agents, financial advisors, Securities Laws and containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters and finders ("FUNDRAISERS"); provided that in no event may the Company enter into an agreement binding upon the Company with respect to the Proposed Offering financial statements and certain financial information contained in the applicable Registration Statement, the General Disclosure Package and the Final Prospectus for such resale;
(other than confidentiality agreementsv) providing an opportunity for such party to conduct a due diligence investigation into the Company and providing full cooperation (at the Company’s expense) with such Fundraisers during due diligence investigation; the Exclusivity Period.
(b) During the Exclusivity Period, if the Representative shall provide the Company with a proposal to purchase all or a portion due diligence investigation and level of the Offered Securities upon similar terms as contained in the Capital Raising Notice, then the Representative shall notify the Company, which notice shall describe the terms of such proposal in reasonable detail, including any and all fees cooperation required to be incurred in connection with the issuance and sale of the Offered Securities (the "PURCHASER PROPOSAL"). As soon as reasonably practical following the Company's notice of such Purchaser Proposal, the Company's Board of Directors shall review and consider in good faith the Purchaser Proposal and make a determination as to whether to approve the Purchaser Proposal, which determination shall consider whether the terms of, and all fees that may be incurred by the Company in connection with, the issuance and sale of the Offered Securities are customary for a transaction of this nature. Any such determination by the Company's Board of Directors shall also be subject to the fiduciary duties and obligations of the Company's Board of Directors. If the Representative fails to submit, fails to close or the Company's Board of Directors fails to approve the Purchaser Proposal on or before the expiration of the Exclusivity Period in accordance with the terms and conditions of this Section 3.9, then the Company may offer and sell the Offered Securities to one or more third parties upon similar terms specified in the Capital Raising Notice without any obligation to submit another Capital Raising Notice to the Representative.
(c) The Company agrees that if the Company receives a bona fide offer for the issuance and sale of Company's debt or equity securities in a capital raising transaction during the period commencing on the Subscription Date and ending on June 30, 2005 (a "THIRD PARTY OFFER"), and such Third Party Offer, when aggregated with all other sales of the Company's debt or equity securities in a capital raising transaction during such period, exceeds $1,000,000, then the Representative shall have the right, but not the obligation, to submit a proposal to purchase the Company's debt or equity securities by the Representative or syndicate of investors arranged by the Representative on terms and conditions more favorable to the Company than contained in the Third Party Offer. Any such proposal by the Representative subsection shall be submitted to the Company within a reasonable period such as would be customarily undertaken by underwriters in an underwritten public offering of time after the Company notifies the Representative of the Third Party Offer. The Company's Board of Directors shall review and consider in good faith any such proposal submitted by the Representative and make a determination as to whether to approve such proposal.
(d) The Purchasers' and the Representative's rights and the Company's obligations under this Section 3.13 shall be subject to, and may be exercised only to the extent not in conflict with or violation of, the rights of Westminster Securities Corp. pursuant to the Company's agreement with Westminster Securities Corp. in effect as of the Subscription Date. The Purchasers and the Representative understand and agree that this Section 3.13 shall in no event apply to (i) the private placement of securities with proceeds to the Company of up to $10,000,000 pursuant to which Bathgate Capital Partners LLC acts a placement agent, (ii) any determination to seek, negotiate or enter into a loan or credit facility (with no associated rights to receive, upon conversion of outstanding balances or otherwise, any securities of the Company) with a commercial bank or lender or (iii) the exercise or conversion , including without limitation making members of any securities management, financial and accounting officers and other employees, counsel, auditors and agents of the Company outstanding promptly available to such requesting party and its advisors, promptly committing such time and other resources, and promptly providing such corporate records, agreements and other documents and materials, in each case as is reasonably requested by such requesting party and as would be customary for an underwriter to receive in an underwriting public offering of the Subscription Datesecurities; and
(vi) otherwise providing reasonable assistance to the requesting party, including, without limitation, the attendance by employees and personnel of the Company at “road show” presentations to potential purchasers of the such Underwriter Unsold Allotment, and furnishing such information and due diligence material as the requesting party or its counsel shall reasonably request. The obligations of the Company set forth in or made pursuant to this Section 5(q) will remain in full force and effect until each of the Backstop Providers has notified the Company in writing that such party’s Underwriter Unsold Allotment has been completely resold.
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