Call Rights (a) Subject to the terms and conditions of this Section 4, the Company shall have the following call rights with respect to the Warrant:
(i) immediately upon receipt of any Exercise Notice from the Holder and prior to any pending Exercise Date (as determined pursuant to Section 2(b)), the Company shall have the right to purchase that portion of the Warrant proposed to be exercised by the Holder pursuant to such Exercise Notice, and if the Company exercises such right, the Holder shall be required to sell such portion of the Warrant to the Company at a purchase price (the "Call Price") determined in accordance with Section 4(b);
(ii) at any time within thirty (30) days following (a) the date of the Company's delivery to the Holder of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/Call Date"), the Company shall have the right to purchase up to fifty percent (50%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell up to fifty percent (50%) of the Warrant to the Company at the Call Price determined in accordance with Section 4(b) below; and
(iii) at any time within thirty (30) days prior to the Expiration Date, the Company shall have the right to purchase up to one hundred percent (100%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell the Warrant or any portion thereof, as the case may be, to the Company at the Call Price determined in accordance with Section 4(b) below.
Preservation of Purchase Rights Upon Merger, Consolidation, etc In case of any consolidation of the Company with or merger of the Company into another corporation or in case of any sale, transfer or lease to another corporation of all or substantially all of the property of the Company, the Company or such successor or purchasing corporation, as the case may be, shall execute with the Warrantholders an agreement that the Warrantholders shall have the right thereafter upon payment of the Exercise Price in effect immediately prior to such action to purchase upon exercise of this Warrant the kind and amount of shares and other securities and property which such holder would have owned or have been entitled to receive after the happening of such consolidation, merger, sale, transfer or lease had this Warrant been exercised immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in respect of cash dividends, interest or other income on or from such shares or other securities and property shall be made during the term of this Warrant or upon the exercise of this Warrant. Such agreement shall provide for adjustments, which shall be as nearly equivalent as practicable to the adjustments provided for in this Section 5. The provisions of this Section 5 shall apply similarly to successive consolidations, mergers, sales, transfers or leases.
Waiver of Preemptive Rights The Subscriber hereby grants, conveys, and vests the Chief Executive Officer of the Corporation as the Subscriber’s power of attorney solely for the purpose of waiving any prior or preemptive right which the Subscriber may have under applicable law to further issues of Securities of the Corporation.
Procedure upon Purchase The Company shall deposit cash (in respect of a cash purchase under Section 3.08(c) or for fractional interests, as applicable) or shares of Common Stock, or a combination thereof, as applicable, at the time and in the manner as provided in Section 3.11, sufficient to pay the aggregate Purchase Price of all Securities to be purchased pursuant to this Section 3.08. As soon as practicable after the Purchase Date, the Company shall deliver to each Holder entitled to receive Common Stock through the Paying Agent, a certificate for the number of full shares of Common Stock issuable in payment of the Purchase Price and cash in lieu of any fractional interests. The person in whose name the certificate for Common Stock is registered shall be treated as a holder of record of shares of Common Stock on the Business Day following the Purchase Date. Subject to Section 3.08(d), no payment or adjustment will be made for dividends on the Common Stock the record date for which occurred on or prior to the Purchase Date.
Certain Additional Rights of Lender (VCOC) Notwithstanding anything to the contrary contained in this Agreement, Lender shall have:
(a) the right to routinely consult with and advise Borrower’s management regarding the significant business activities and business and financial developments of Borrower; provided, however, that such consultations shall not include discussions of environmental compliance programs or disposal of hazardous substances. Consultation meetings should occur on a regular basis (no less frequently than quarterly) with Lender having the right to call special meetings at any reasonable times and upon reasonable advance notice;
(b) the right, in accordance with the terms of this Agreement, to examine the books and records of Borrower at any reasonable times upon reasonable notice;
(c) the right, in accordance with the terms of this Agreement, including, without limitation, Section 5.1.11 hereof, to receive monthly, quarterly and year end financial reports, including balance sheets, statements of income, shareholder’s equity and cash flow, a management report and schedules of outstanding indebtedness; and
(d) the right, without restricting any other rights of Lender under this Agreement (including any similar right), to approve any acquisition by Borrower of any other significant property (other than personal property required for the day to day operation of the Property). The rights described above in this Section 10.24 may be exercised by any entity which owns and controls, directly or indirectly, substantially all of the interests in Lender.
Recall Rights Teachers whose contracts have been suspended or non-renewed because of a reduction in force shall be so notified in writing and shall have rights to recall as follows:
1. Recall rights shall be limited to the twenty-four (24) months period commencing on the day following the employee's last day of work.
2. Teachers whose contracts were non-renewed or suspended shall be recalled to a vacancy in the inverse order of non-renewal or suspension as positions become available in their area of certification/licensure at the time of recall; provided however, that certificated tutors whose contracts were non-renewed or suspended shall be recalled only to certificated tutor vacancies, and then in the inverse order of non-renewal of suspension as such positions become available in their area of certification/licensure at the time of recall; and further provided however, seniority shall not be the basis for recalling a teacher, except when making a decision between teachers who have comparable evaluations. Teachers must notify the District of any changes in their area of certification/licensure.
3. A teacher notified of recall to a position may turn down the first offered position, allowing the Superintendent to offer said position to the next person on the recall list who is qualified to fill said position. The person making the turndown would retain his/her position on the recall list. If a teacher refuses recall to another position, said teacher's name shall be removed from the recall list; except no teacher shall be removed from the recall list for refusing a lesser position (time or pay) than the one from which he/she was reduced. Provided however, no teacher whose continuing contract has been suspended shall lose the right of recall and restoration to continuing service status by reason of having declined recall to a position that is less than full-time or, if the teacher was not employed full-time just prior to suspension of the teacher's continuing contract, to a position requiring a lesser percentage of full-time employment than the position the teacher last held while employed in the district.
4. Teachers on recall status shall have the responsibility for keeping the Superintendent informed of their current address, name change, and telephone number. Notification of recall shall be by certified mail at the teacher's last known address. Failure to contact the Superintendent to accept such recall within ten (10) calendar days of the date of such mailing shall remove the teacher from recall status.
5. Teachers, who during recall receive additional training or additional areas of certification/licensure, shall provide documentation of such to the Board, who shall upgrade the teacher’s status on the Recall List. No new employees shall be hired to fill a vacancy until teachers on the Recall List have been asked to fill the vacancy.
Put Rights The Warrantholder shall have the following Put Rights:
(a) At the earlier of (i) the fifth anniversary of the date hereof and (ii) a Change of Control, the Warrantholder may notify the Company in writing (the "PUT NOTICE") of the Warrantholder's desire to cause the Company to repurchase, in the case of clause (i) above, all (but not less than all) of the Warrant Shares (issued or represented by the Warrant) at a price per share equal to the Repurchase Price (the "Five-Year Put"), or, in the case of clause (ii) above, the Warrant at the Change of Control Repurchase Price (the "Change of Control Put").
(b) If the Company receives a Put Notice pursuant to Section 7(a), it shall deliver to the Warrantholder, by first class mail, postage prepaid, mailed as soon as practicable and if possible within thirty (30) days of the receipt by the Company of the Put Notice, a notice stating: (i) the date as of which such repurchase shall occur (which date (the "Put Closing") shall be not less than ten (10) nor more than thirty (30) days following the date of such notice, but in any event prior to the Expiration Date); (ii) in the case of a Five-Year Put, the number of Warrant Shares (issued or represented by this Warrant) to be purchased from the Warrantholder and the Repurchase Price (which shall be calculated as of the date of the Put Notice) or, in the case of a Change of Control Put, the Change of Control Repurchase Price; and (iii) the place or places where certificate or certificates representing this Warrant or Warrant Shares are to be surrendered for payment; PROVIDED, HOWEVER, that the Company shall have no obligation to send the notice set forth above or to repurchase the Warrants and Warrant Shares following the exercise of the Five Year Put (and the provisions of paragraph (c) below shall not be applicable to any failure by the Company to repurchase the Warrants and the Warrant Shares following the exercise of the Five Year Put), unless the holders of not less than a majority of the shares of Common Stock issued or issuable upon exercise of the Investor Warrants (the "Investor Warrant Shares") shall also have exercised the "five year put" provided for in the Investor Warrants.
(c) With respect to Warrants and Warrant Shares properly tendered for repurchase, if the Company fails to pay the Repurchase Price or the Change of Control Repurchase Price on the date fixed for repurchase, the Corporation shall also pay interest thereon at the rate of 12% per annum, compounded on a quarterly basis, until such time as such satisfaction shall have occurred.
(d) At the Put Closing, the Warrantholder shall deliver to the Company the certificate or certificates representing the Warrantholder's Warrant or Warrant Shares and the Company shall deliver to the Warrantholder an amount equal to, in the case of a Five-Year Put, the product obtained by multiplying (i) the number of such Warrant Shares (issued or represented by this Warrant) by (ii) the Repurchase Price or, in the case of a Change of Control Put, the Change of Control Repurchase Price, by cashier's or certified check payable to the Warrantholder or by wire transfer of immediately available funds to an account designated by the Warrantholder.
(e) The Company shall not (and shall not permit any Affiliate of the Company to) enter into any contract or other consensual arrangement that by its terms restricts the Company's ability to honor the Put.
Preemptive Rights (a) In the event that the Purchaser Beneficially Owns at least 20% of the aggregate number of shares of NewCo Common Stock then outstanding, if NewCo engages in any transaction involving the direct or indirect sale or issuance of Covered Securities by NewCo and such sale or issuance would cause the Purchaser to Beneficially Own less than 20% of the aggregate number of outstanding shares of NewCo Common Stock immediately following such sale or issuance, the Purchaser will be afforded the opportunity to acquire from NewCo, for the same price and on the same terms as such Covered Securities are offered, up to an amount (the “Amount”) necessary to enable the Purchaser to own 20% of the aggregate number of outstanding shares of NewCo Common Stock immediately following such sale or issuance; provided, that, if the transaction at issue is an acquisition, merger or other business combination involving a Third Party by NewCo in which NewCo issues or sells Covered Securities as consideration for the transaction, such Covered Securities shall be deemed to be offered at the per share purchase price implied from the transaction terms as of the time of entry into the agreement for such transaction; provided, further, that, if such per share purchase price is not reasonably ascertainable, the per share purchase price shall be deemed to be the trading price of the NewCo Common Stock at the close of the business on the day immediately prior to the public disclosure or announcement of such transaction.
(b) If NewCo proposes to engage in a transaction involving the direct or indirect sale or issuance of Covered Securities described in Section 8.12(a) above, NewCo will first submit written notice (the “Notice of Preemptive Rights”) to the Purchaser disclosing the terms of the proposed sale or issuance transaction (which notice will set forth all material terms, including price, number of securities or aggregate principal amount, as applicable, and the type of securities to be sold or issued). The Notice of Preemptive Rights will include an offer to the Purchaser to purchase up to the Purchaser’s Amount of such Covered Securities on terms and conditions, including price, not less favorable to the Purchaser than those on which NewCo proposes to sell such Covered Securities to the third party or parties. Such offer as set forth in the Notice of Preemptive Rights will remain open for a period of at least 15 Business Days after the Notice of Preemptive Rights is delivered, prior to the expiration of which period the Purchaser may accept such offer by written notice to NewCo setting forth the number of Covered Securities that the Purchaser intends to purchase. The consummation of such purchase by the Purchaser shall be conditioned on the simultaneous or prior consummation of the sale described in the Notice of Preemptive Rights. Nothing herein shall prohibit NewCo’s consummation of the sale set forth in the Notice of Preemptive Rights to third parties prior to the sale of Covered Securities to the Purchaser hereunder as long as NewCo has provided Purchaser the required notice hereunder and the Purchaser is simultaneously with or promptly after such consummation provided the opportunity to purchase the amount of Covered Securities that it would have been entitled to purchase if such issuance had occurred at the same time.
(c) Any Covered Securities covered by a Notice of Preemptive Rights which are not purchased by the Purchaser pursuant to Section 8.12(b) may be sold by NewCo to a third party or parties at any time within 180 days following the expiration of the 15 Business Day period specified in Section 8.12(b); provided that each of the price and the other terms and conditions of such sale are not more favorable to such third parties than as set forth in the Notice of Preemptive Rights. For the avoidance of doubt, any sale or issuance of Covered Securities other than in compliance with this Section 8.12(c) will require delivery of a new Notice of Preemptive Rights.
Relative Rights and Preferences Unless the establishing resolution or any other resolution adopted pursuant to Section 2.3 otherwise provides, Shares of each Portfolio or Class thereof established hereunder shall have the following relative rights and preferences:
(a) Except as set forth in paragraph (e) of this Section 2.5, each Share of a Portfolio, regardless of Class, shall represent an equal pro rata interest in the assets belonging to such Portfolio and shall have identical voting, dividend, liquidation and other rights, preferences, powers, restrictions, limitations, qualifications and designations and terms and conditions with each other Share of such Portfolio.
(b) Shareholders shall have no preemptive or other right to subscribe to any additional Shares or other securities issued by the Trust or the Trustees, whether of the same or other Portfolio (or Class).
(c) All consideration received by the Trust for the issue or sale of Shares of a particular Portfolio, together with all assets in which such consideration is invested or reinvested, all income, earnings, profits, and proceeds thereof, including any proceeds derived from the sale, exchange, or liquidation of such assets, and any funds or payments derived from any reinvestment of such proceeds in whatever form the same may be, shall be held and accounted for separately from the other assets of the Trust and of every other Portfolio and may be referred to herein as "assets belonging to" that Portfolio. The assets belonging to a particular Portfolio shall belong to that Portfolio for all purposes, and to no other Portfolio, subject only to the rights of creditors of that Portfolio. In addition, any assets, income, earnings, profits or funds, or payments and proceeds with respect thereto, which are not readily identifiable as belonging to any particular Portfolio shall be allocated by the Trustees between and among one or more of the Portfolios in such manner as the Trustees, in their sole discretion, deem fair and equitable. Each such allocation shall be conclusive and binding upon the Shareholders of all Portfolios thereof for all purposes, and such assets, income, earnings, profits, or funds, or payments and proceeds with respect thereto shall be assets belonging to that Portfolio.
(d) Each Class of a Portfolio shall have a proportionate undivided interest (as determined by or at the direction of, or pursuant to authority granted by, the Trustees, consistent with industry practice) ("Proportionate Interest") in the net assets belonging to that Portfolio. References herein to assets, expenses, charges, costs, and reserves "allocable" or "allocated" to a particular Class of a Portfolio shall mean the aggregate amount of such item(s) of the Portfolio multiplied by the Class's Proportionate Interest.
(e) A particular Portfolio shall be charged with the liabilities of that Portfolio, and all expenses, costs, charges and reserves attributable to any particular Portfolio shall be borne by such Portfolio; provided that the Trustees may, in their sole discretion, allocate or authorize the allocation of particular expenses, costs, charges, and/or reserves of a Portfolio to fewer than all the Classes thereof. Class Expenses shall, in all cases, be allocated to the Class for which such Class Expenses were incurred. Any general liabilities, expenses, costs, charges or reserves of the Trust (or any Portfolio) that are not readily identifiable as chargeable to or bearable by any particular Portfolio (or any particular Class) shall be allocated and charged by the Trustees between or among any one or more of the Portfolios (or Classes) in such manner as the Trustees in their sole discretion deem fair and equitable. Each such allocation shall be conclusive and binding upon the Shareholders of all Portfolios (or Classes) for all purposes. Without limitation of the foregoing provisions of this Section 2.5(e), (i) the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular Portfolio shall be enforceable against the assets of such Portfolio only, and not against the assets of the Trust generally or assets belonging to any other Portfolio, and (ii) none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the Trust generally that have not been allocated to a specified Portfolio, or with respect to any other Portfolio, shall be enforceable against the assets of such specified Portfolio. Notice of this contractual limitation on inter-Portfolio liabilities is set forth in the Trust's Certificate of Trust described in Section 1.4, and, accordingly, the statutory provisions of Section 3804 of the Delaware Act relating to limitations on inter-Portfolio liabilities (and the statutory effect under Section 3804 of setting forth such notice in the Certificate of Trust) are applicable to the Trust and each Portfolio.
(f) Except as provided for in Section 2.10, shares redeemed or repurchased by a Portfolio or the Trust shall be deemed to be canceled.
(g) The Trust may issue Shares in fractional denominations of 1/1000th of a Share or integral multiples thereof to the same extent as its whole Shares, and Shares in fractional denominations shall be Shares having proportionately to the respective fractions represented thereby all the rights of whole Shares of the same Portfolio (or Class), including without limitation, the right to vote, the right to receive dividends and distributions and the right to participate upon termination of the Trust or any Portfolio, but excluding the right to receive a certificate representing fractional Shares. All references to Shares in this Agreement shall be deemed to be shares of any or all Portfolios, or Classes thereof, as the context may require. All provisions herein relating to the Trust shall apply equally to each Portfolio of the Trust, and each Class thereof, except as the context otherwise requires.
Rights of Assignees of Partnership Interests (a) Subject to the provisions of Sections 9.1 and 9.2 hereof, except as required by operation of law, the Partnership shall not be obligated for any purposes whatsoever to recognize the assignment by any Limited Partner of its Partnership Interest until the Partnership has received notice thereof.
(b) Any Person who is the assignee of all or any portion of a Limited Partner’s Limited Partnership Interest, but does not become a Substitute Limited Partner and desires to make a further assignment of such Limited Partnership Interest, shall be subject to all the provisions of this Article 9 to the same extent and in the same manner as any Limited Partner desiring to make an assignment of its Limited Partnership Interest.
