EXHIBIT 10.51
O3B NETWORKS LIMITED
PREEMPTIVE RIGHTS AGREEMENT
This Preemptive Rights
Agreement (the “ Agreement ”)
is entered into as of the 4 th day of January,
2008, by and among O3B N etworks Limited , a
private company limited by shares organized under the laws of
Jersey (the “ Company ”), LGI Ventures B.V. (the
“ Preferred Investor ”), and each of the
persons and entities listed on Exhibit A hereto (the
“ Initial Common Investors ” and,
together with the Preferred Investor, the “
Investors ”).
Recitals
Whereas, the Preferred
Investor is purchasing Series A Preference Shares of the
Company (the “ Series A Preference Shares
”) pursuant to that certain Series A Preference Share
Purchase Agreement (the “ Purchase Agreement
”) of even date herewith (the “
Investment ”);
Whereas , the
Preferred Investor’s entry into the Purchase Agreement is
expressly conditioned upon the execution and delivery of this
Agreement by the other parties hereto; and
Whereas , in
connection with the consummation of the Investment, the parties
desire to enter into this Agreement in order to grant preemptive
rights to the Investors as set forth below.
Now, Therefore, in
consideration of these premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. GENERAL.
1.1 Definitions. As used in
this Agreement the following terms shall have the following
respective meanings:
(a) An “Affiliate” of the
Preferred Investor shall mean any person or entity that directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the Preferred
Investor.
(b) “ Common Shares ” shall mean
the Common Shares of the Company.
(c) “ Non-U.S. Legal Requirements
” shall mean, in the case of a public offering or
registration of any of the Company’s securities on a public
securities exchange (whether regulated or otherwise) in the United
Kingdom or elsewhere in the world other than the United States all
applicable laws, regulations or other legal requirements necessary
to permit the unrestricted sale of such securities to be registered
in such jurisdiction and on such market by the Company or the
Holders of such securities, as the case may be.
(d) “ Qualified IPO ” shall mean
the first firmly underwritten public offering pursuant to an
effective Registration Statement under the Securities Act or
Non-U.S. Legal Requirements (i) covering the offer and sale of
Common Shares for the account of the Company
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that
values the Company at not less than €121,250,000 prior to the
consummation of such offering and in which the net cash proceeds to
the Company (after underwriting discounts, commissions and fees)
are at least €34,750,000 (or its equivalent in U.S. dollars if
such offering is effected in the United States) and (ii) after
which the Common Shares are listed on the New York Stock Exchange,
the Nasdaq Global Market, the Nasdaq Global Select Market or a
designated offshore securities market (as defined in
Regulation S under the Securities Act).
(e) “ Registration Statement ”
shall mean (i) with respect to an offering of the
Company’s securities in the United States, a registration
statement as defined in the Securities Act and (ii) with respect to
the offering of the Company’s securities in non-U.S.
jurisdictions, the comparable documents required under applicable
Non-U.S. Legal Requirements for the relevant securities to be
registered, listed, admitted to trading or otherwise and includes,
without limitation, prospectuses, listing particulars and admission
documents.
(f) “ SEC ” or “
Commission ” shall mean the U.S. Securities and
Exchange Commission.
(g) “ Securities Act ” shall mean
the U.S. Securities Act of 1933, as amended.
SECTION 2. PREEMPTIVE RIGHTS
.
2.1 Subsequent Offerings.
Each Investor shall have a preemptive right 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 after the
date of this Agreement, other than the Equity Securities excluded
by Section 2.4 hereof. For this purpose, each Investor’s
pro rata share is equal to the ratio of (a) the number
of Common Shares (including all Common Shares issuable or issued
upon conversion of the Series A Preference Shares or upon the
exercise or conversion of outstanding warrants or options or
convertible securities) of which such Investor, together with its
Affiliates, is a holder or would be a holder upon conversion or
exercise at the time notice of the proposed issuance of such Equity
Securities is given by the Company pursuant to Section 2.2 to
(b) the total number of Common Shares (including all Common
Shares issued or issuable upon conversion of the Series A
Preference Shares or upon the exercise or conversion of any
outstanding warrants or options or convertible securities)
outstanding immediately prior to the issuance of such Equity
Securities. The term “ Equity Securities
” shall mean (i) any Common Shares, Preference Shares or
other equity security of the Company, (ii) any security
convertible into or exercisable or exchangeable for, with or
without consideration, any Common Shares, Preference Shares or
other equity security of the Company (including any option to
purchase such a convertible security), (iii) any security
carrying any warrant or right to subscribe to or purchase any
Common Shares, Preference Shares or other equity security of the
Company or (iv) any such warrant or right.
2.2 Exercise of Rights. If
the Company proposes to issue any Equity Securities, it shall give
each Investor written notice of its intention, describing the
Equity Securities and the price and other terms and conditions upon
which the Company proposes to issue the same. Each Investor shall
have ten (10) days from the date such notice is deemed given
to exercise its right to purchase its pro rata share of the
Equity Securities on the terms and conditions specified in the
notice by giving written notice thereof to the Company.
Notwithstanding the foregoing, the
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Company
shall not be required to offer or sell such Equity Securities to
any Investor if doing so would cause the Company to be in violation
of applicable securities laws by virtue of such offer or
sale.
2.3 Issuance of Equity Securities
to Other Persons. The Company shall have ninety (90) days
after the end of the aforementioned 10-day period to sell the
Equity Securities in respect of which the Investor’s rights
were not exercised, at a price not lower and upon terms and
conditions not more favorable to the purchasers thereof than
specified in the Company’s notice to the Investors pursuant
to Section 2.2 hereof. If the Company has not sold such Equity
Securities within ninety (90) days after the end of the
aforementioned 10-day period the Company shall not thereafter issue
or sell any Equity Secu