Sale of New Securities. For so long as the Focus Investor, together with its Affiliates, owns 10% or more of all of the outstanding Common Shares (counting for such purposes all Common Shares into or for which the securities of the Company owned by the Investor and its Affiliates are directly or indirectly convertible or exercisable) (before giving effect to any issuances triggering provisions of this Section) if, at any time after the date hereof and on or before the fifth anniversary of the date hereof, the Company makes any nonpublic offering or sale of any equity security (including Common Shares, preferred shares or restricted shares), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as an “equity kicker”) (any such security, a “New Security”) (other than (i) any Common Shares or other securities issuable upon the exercise or conversion of any securities of the Company issued or agreed to be issued as of the date hereof; (ii) pursuant to the granting or exercise of employee share options or other share incentives pursuant to the Company’s share incentive plans approved by the Board of Directors or the issuance of shares pursuant to the Company’s employee share purchase plan approved by the Board of Directors or similar plan where shares are being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of shares or other securities as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction), then, to the extent not prohibited, not restricted, and not requiring any shareholders’ approval by any applicable law or by obligations pursuant to any listing agreement with any securities exchange or any securities exchange regulation, the Focus Investor shall be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by law and the Articles of Association, the Investor may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed or public offering) as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enab...
Sale of New Securities. In the event a Major Investor fails to exercise in full its right of first refusal within such 20 day period and a Senior Investor fails to exercise in full its additional right of first refusal within such 10 day period thereafter, the Company shall have 90 days thereafter to sell or enter into an agreement (pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within 60 days after the date of such agreement) to sell the New Securities respecting which such Major Investor’s and Senior Investor’s rights were not exercised, at a price and upon general terms no more favorable to the purchaser thereof than specified in the Notice. In the event the Company has not sold the New Securities within such 90 day period (or sold and issued New Securities in accordance with the foregoing within 60 days from the date of such agreement), the Company shall not thereafter issue or sell any New Securities without first offering such securities to such Major Investor and such Senior Investor in the manner provided above.
Sale of New Securities. After the Closing, for so long as the Anchor Investors own securities representing the Qualifying Ownership Interest (before giving effect to any issuances triggering provisions of this Section 3.9), at any time that the Company proposes to make any public or nonpublic offering or sale of any equity (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, an “equity” kicker) (including any hybrid security) (any such security, a “New Security”) (other than the issuance and sale of securities (i) in connection with the Rights Offering; (ii) to employees, officers, directors or consultants of the Company pursuant to employee benefit plans or compensatory arrangements approved by the Board of Directors (including upon the exercise of employee stock options granted pursuant to any such plans or arrangements) or (iii) as consideration in connection with any bona fide, arm’s-length direct or indirect merger, acquisition or similar transaction) the Anchor Investors shall first be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by Law and the Articles of Incorporation and By-Laws of the Company, the Anchor Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities are proposed to be offered to others, up to the amount of such New Securities to be offered in the aggregate required to enable it to maintain its proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The New Securities that the Anchor Investors shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the number of shares of Common Stock held by the Anchor Investors and the denominator of which is the number of shares of Common Stock then outstanding. Notwithstanding anything herein to the contrary, in no event shall the Anchor Investors have the right to purchase securities hereunder to the extent that such purchase would result in the Anchor Investors exceeding the ownership limitations of the Anchor Investors set forth in Section 3.6.
Sale of New Securities. The Investor and its Affiliates and their respective Subsidiaries shall have the right to purchase up to its pro rata share (based on its percentage of Beneficial Ownership of the Company, on a fully diluted basis) of all issuances of equity or securities convertible to or exchangeable for equity in the Company from the Closing Date to [ ], 2014 (or until [ ], 2017, provided that Investor’s combined stake (including the Preferred Shares if converted) represents at least ten million (10,000,000) shares of Common Stock), if the Investor and/or its Affiliates and/or their respective Subsidiaries have purchased the Preferred Shares, if at any time or from time after the Closing Date, the Company makes any public or non-public offering of any equity securities (including Common Stock or preferred shares, options or debt that is convertible or exchangeable into equity securities or that include an equity component, such as an “equity” kicker, including any hybrid security) (any such security, a “New Security”) for cash (excluding the issuance or sale in the aggregate of up to 200,000 shares of Common Stock in any six month period through the equity distribution agreement with JMP Securities or the standby equity distribution agreement with YA Global Master SPV Ltd., or any similar equity distribution arrangement executed prior to the day hereof and, for the avoidance of doubt, other than (1) pursuant to the granting of employee equity awards, in each case in the ordinary course of equity compensation awards or stock purchase plans or dividend reinvestment plans, or (2) issuances for the purposes of consideration in acquisition transactions), the Investor shall be afforded the opportunity to acquire from the Company for the same price and on the same terms as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its then proportionate Common Stock-equivalent interest (including Common Stock issuable upon Preferred Shares Beneficially Owned by Investor), subject to the limitation set forth in Section 2(a)(i)(A). The amount of New Securities that the Investor shall be entitled to purchase in the aggregate, subject to the limitations set forth in Section 2(a)(i)(A), shall be determined by multiplying (x) the total number of such offered shares of New Securities by (y) a fraction, the numerator of which is the number of Common Stock held by the Investor (including Common Stock issua...
Sale of New Securities. In the event an Investor fails to exercise in full its right of first refusal within such 20 day period, the Company shall have 90 days thereafter to sell or enter into an agreement (pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within 60 days after the date of such agreement) to sell the New Securities respecting which such Investor’s rights were not exercised, at a price and upon general terms no more favorable to the purchaser thereof than specified in the Notice. In the event the Company has not sold the New Securities within such 90 day period (or sold and issued New Securities in accordance with the foregoing within 60 days from the date of such agreement), the Company shall not thereafter issue or sell any New Securities without first offering such securities to such Investor in the manner provided above.
Sale of New Securities. For so long as a Purchaser, together with its Affiliates and, for purposes of this Section 4.17, persons who share a common discretionary investment advisor with the Purchaser, owns 4.9% or more of all of the outstanding shares of Common Stock (provided that, in making such calculation, (i) all shares of Common Stock into or for which shares of any securities owned by the Purchaser are directly or indirectly convertible or exercisable (which, for the avoidance of doubt, shall include those shares of Common Stock and Non-Voting Common Stock issuable upon the conversion of shares of Series A Preferred Stock), shall be included in the numerator, (ii) the shares described in clause (i) and all such shares owned by or attributed to other Purchasers or Other Investors shall be included in the denominator, and (iii) all securities issued by the Company after the Closing Date other than in connection with an issuance in which the Purchaser was offered the right to purchase its pro rata portion of such securities in accordance with this Section 4.17 shall be excluded from the denominator) (before giving effect to any issuances triggering provisions of this Section 4.17), if at any time after the date hereof the Company makes any public or nonpublic offering or sale of any equity (including Common Stock, Series A Preferred Stock, Non-Voting Common Stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, an “equity kicker”) (including any hybrid security) (any such security, a “New Security”) (other than (i) any Common Stock, Series A Preferred Stock or other securities issuable upon the exercise or conversion of any securities of the Company issued or agreed or contemplated (and disclosed to the Purchaser in writing) to be issued as of the date hereof; (ii) pursuant to the granting or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board of Directors or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by the Board of Directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; (iii) issuances of capital stock as full or partial consideration for a merge...
Sale of New Securities. If, at any time following the Closing and ending on the fifth (5th) anniversary of the Closing, and for so long as the Lead Investor (1) holds at least [**]% of the Securities purchased by the Lead Investor as of the Closing Date and (2) purchases at least [**]% of the maximum amount of New Securities it is permitted to purchase pursuant to this Section 4.12, the Company or any of its Subsidiaries makes any nonpublic offering (for clarity, meaning any offering that is not registered under the Securities Act or in a marketed “Rule 144A” offering of debt securities to accredited investors) of any Common Stock, other capital stock of the Company or other type of equity interest, warrants, options or other securities of the Company, including any securities that are convertible into or exchangeable into the foregoing (other than (i) Common Stock issuable to officers, employees, directors, managers or independent contractors of the Company or any of its Subsidiaries in connection with warrants, options, notes or other rights to acquire securities of the Company including any such shares issued pursuant to a Stock Plan, (ii) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company upon conversion, exercise or exchange of any securities of the Company outstanding immediately prior to the Closing, (iii) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company to equipment lessors, pursuant to an equipment leasing transaction, (iv) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company to a third-party financial institution in connection with a bona fide borrowing by the Company or its Subsidiaries, (v) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered or issued in connection with any stock split, stock combination, stock dividend, distribution or recapitalization, (vi) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company in connection with...
Sale of New Securities. In the event that the Investor fails to exercise fully all preemptive rights within said 20-day period, the Company shall have 120 days thereafter to sell the remaining New Securities that the Investor does not elect to purchase upon exercise of the preemptive rights pursuant to this Section 2, at a price and upon terms no more favorable to the purchasers thereof than specified in the Company's notice to the Investor pursuant to subsection 2.3. In the event the Company has not sold all such remaining New Securities within such 120-day period, the Company shall not thereafter issue or sell any New Securities, without first again offering such securities to the Investor in the manner provided in subsection 2.3 above.
Sale of New Securities. If at any time after the date of this Agreement the Company proposes to issue or sell any Common Stock or any other class or series of equity securities of the Company (collectively, “New Securities”) to any Person, the Company shall first offer to sell to the Purchaser that number of New Securities that would allow the Purchaser to maintain its pro rata ownership in the Company after the sale of all New Securities (with pro rata ownership being calculated on a fully-diluted basis including all outstanding shares of Common Stock and any other outstanding class or series of equity securities of the Company, all outstanding options and warrants and all other outstanding securities convertible into or exercisable for equity securities of the Company). In order to exercise its purchase rights hereunder, the Purchaser must, within thirty (30) days after receipt of written notice from the Company describing in reasonable detail the New Securities being offered, the purchase price thereof, the payment terms and the percentage of the New Securities available to the Purchaser (the “Preemptive Rights Notice”), deliver a written notice to the Company describing its election to exercise its purchase rights hereunder. If the Purchaser elects not to purchase any New Securities or fails to deliver written notice of exercise to the Company within the foregoing thirty (30) day period, the Company shall be entitled to sell all or any portion of such New Securities to any third party purchaser during the one hundred twenty (120) days period following the date of the Preemptive Rights Notice on terms no more favorable to such third party purchaser than those offered to the Purchaser in the Preemptive Rights Notice. Any New Securities to be sold by the Company to any Person after such 120-day period must be reoffered to the Purchaser pursuant to the terms of this Section 6.
Sale of New Securities. Until the earlier of five years from the Closing Date or such time as a Purchaser, together with its Affiliates, owns the lesser of 5% of all of the outstanding shares of Common Stock (counting for such purposes all shares of Common Stock into or for which any securities owned by such Purchaser are directly or indirectly convertible or exercisable (whether currently or after the occurrence of contingencies and/or the passage of time) and, for the avoidance of doubt, including as shares owned and outstanding all shares of Common Stock issued by the Company after the Closing) or 50% of the number of shares of Common Stock purchased by such Purchaser pursuant to this Agreement (as adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other like changes in the Company’s capitalization) (in each case, before giving effect to any issuances triggering provisions of this Section), if at any time after the Original Signing Date the Company makes any public or nonpublic offering or sale of Common Stock, or securities convertible into Common Stock or other equity or equity-linked security (any such security, a “New Security”) (other than (i) any Common Stock or other securities issuable upon the exercise or conversion of any securities of the Company issued or, to the extent specified in Schedule 3.1(g), agreed or contemplated to be issued as of the Original Signing Date; (ii) pursuant to the granting or exercise of employee stock options or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board of Directors or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by the Board of Directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction), or (iv) not later than 180 days after the Closing an offering of up to $10 million of aggregate offering price of Common Stock pursuant to subscription rights distributed pro rata to the then existing holders of record of Common Stock and each Purchaser at a price per share of Common Stock not less than $16.00, and the associa...
