Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above shall not apply to (i) any transfer without consideration to the Selling Stockholder’s ancestors, descendants or spouse or to trusts for the benefit of such persons or the Selling Stockholder, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (A) the Selling Stockholder shall inform the Investors of such transfer prior to effecting it and (B) the transferee shall enter into a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder hereunder. Such transferred Selling Stockholder Shares shall remain “Selling Stockholder Shares” hereunder, and such transferee shall be treated as the “Selling Stockholders” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof. (b) Notwithstanding the foregoing, the provisions of this Section 5 shall not apply to the sale of any Selling Stockholder Shares to the public pursuant to a registration statement filed with, and declared effective by, the Commission under the Securities Act. (c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
Appears in 2 contracts
Samples: Investor Rights Agreement (Sientra, Inc.), Investor Rights Agreement (Sientra, Inc.)
Exempt Transfers. (a) Notwithstanding the foregoing, the right The provisions of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above this Article IV shall not apply to (ia) any transfer without consideration to the Selling Stockholder’s ancestors, descendants or spouse or to trusts for the benefit sale of such persons or the Selling Stockholder, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to Capital Stock in a bona fide loan transaction that creates a mere security interestunderwritten public offering of Capital Stock pursuant to an effective registration statement under the Securities Act or if the relevant class of Capital Stock is listed or traded on the New York Stock Exchange, AMEX or the NASDAQ National Market, any bona fide public distribution of Capital Stock pursuant to Rule 144 thereunder; (ivb) any bona fide giftpledge by MW or a GEI Party of Capital Stock to a commercial bank, savings and loan institution or any other similar lending institution as security for any indebtedness to such lender or any sale upon foreclosure of any such pledge; (vc) any transfer transfer, sale or other disposition of Capital Stock by a GEI Party to an Affiliate any other Person controlled directly or indirectly by Xxxxxxx Xxxxx & Partners, L.P. or any of its Affiliates; provided, that such Selling Stockholderother Person complies with the provisions of Section 2.1 hereof; (d) redemption by the Company of its Capital Stock; provided that in the event of any transfer such redemption is made pursuant to one pro rata among all holders of the exemptions provided class of Capital Stock being redeemed; (e) any GEI Distribution (as defined in Article X); (f) any Transfer or proposed Transfer of Common Stock or Junior Preferred Stock by clauses any GEI Party to MW (ior a Permitted Transferee); or (g) any Transfer or proposed Transfer of Common Stock by a GEI Party if such Transfer of Common Stock is made in connection with a Transfer of Senior Preferred Stock; provided, (ii)that, (iii)such Transfers of Common Stock in connection with Transfers of Senior Preferred Stock by the GEI Parties, (iv) and (v), (A) the Selling Stockholder shall inform the Investors of such transfer prior to effecting it and (B) the transferee shall enter into a written agreement to be bound by and comply together with all provisions prior Transfers of this AgreementCommon Stock in connection with Transfers of Senior Preferred Stock, as if it were an original Selling Stockholder hereunderdo not exceed 10% of the Common Stock owned by the GEI Parties immediately following the effective time of the Merger. Such transferred Selling Stockholder Shares shall remain “Selling Stockholder Shares” hereunder, and such transferee The GEI Parties agree that any Transfer of Senior Preferred Stock described in clause (g) of the preceding sentence shall be treated as a bona fide Transfer and that they will not offer to sell shares of Senior Preferred Stock with shares of Common Stock in order to circumvent the “Selling Stockholders” for purposes rights of MW in this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereofArticle IV.
(b) Notwithstanding the foregoing, the provisions of this Section 5 shall not apply to the sale of any Selling Stockholder Shares to the public pursuant to a registration statement filed with, and declared effective by, the Commission under the Securities Act.
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
Appears in 2 contracts
Samples: Stockholders Agreement (Hollywood Entertainment Corp), Stockholders Agreement (Hollywood Entertainment Corp)
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above shall not apply to (i) any transfer without consideration Transfer or Transfers by a Shareholder which in the aggregate, over the term of this Agreement, amount to less than 10% (measured on a cumulative basis) of all outstanding Co-Sale Stock as of the date hereof (as adjusted for stock splits, dividends and the like), (ii) any Transfer to the Selling Stockholder’s ancestors, descendants or spouse or to trusts for the benefit of such persons or the Selling StockholderShareholder, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer Transfer made pursuant to one of the exemptions provided by clauses (i), (ii), ) or (iii), (iv) and (v), (A) the Selling Stockholder Shareholder shall inform the Investors of such transfer pledge, Transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Investors with a written agreement to be bound by and comply with all provisions of this AgreementSection 2. Except with respect to Co-Sale Stock transferred under clause (i) immediately above (which Co-Sale Stock shall no longer be subject to the co-sale rights of the Investors), as if it were an original Selling Stockholder hereunder. Such such transferred Selling Stockholder Shares Co-Sale Stock shall remain “Selling Stockholder Shares” "Co-Sale Stock" hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” a "Shareholder" for all purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 2 shall not apply to the sale of any Selling Stockholder Shares Co-Sale Stock as part of a firmly underwritten public offering of the Company's Common Stock at a price per share of at least five dollars ($5.00) per share and having an aggregate offering price to the public pursuant to of at least twenty million dollars ($20,000,000) before deduction of underwriting discounts and selling commissions (a registration statement filed with, and declared effective by, "Qualified Offering") or as part of any other public offering of the Commission under Company's securities in which the Securities ActCompany's outstanding Preferred Stock is converted into Common Stock in accordance with the Company's Articles of Incorporation.
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder Shareholders pursuant to (i) a stock restriction agreement or other agreement between among the Company and the Selling StockholderShareholders and (ii) any right of first refusal set forth in the Bylaws of the Company.
Appears in 2 contracts
Samples: Series B Preferred Stock Purchase Agreement (Oryx Technology Corp), Series B 1 Preferred Stock Purchase Agreement (Oryx Technology Corp)
Exempt Transfers. (a) Notwithstanding the foregoing, the right rights of first refusal and the co-sale rights of the Company and/or and the Non-Selling Investors set forth in Section 5 above (the "Rights") shall not apply to (i) any transfer without consideration or transfers by any Investor which in the aggregate amount to no more than ten percent (10%) of Co-Sale Stock held by all Investors as of the date of any proposed transfer, (ii) any pledge of Co-Sale Stock made pursuant to a bona fide loan transaction with a financial institution that creates a mere security interest, (iii)any transfer to the Selling Stockholder’s ancestors, descendants or spouse of a Investor or to trusts for the benefit of such persons or the Selling Stockholder, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interestsuch Investor, (iv) any bona fide gift, transfer to its partners or members by a Investor that is a partnership or limited liability company; (v) any transfer to an Affiliate of such Selling Stockholderits affiliate by a Investor that is a corporation, or (vi) any bona fide gift; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv), (v) and (vvi), (A) the Selling Stockholder such Investor shall inform the Company and the Non-Selling Investors of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Company and the Non-Selling Investors with a written agreement to be bound by and comply with all provisions of this AgreementSection 2. Except with respect to Co-Sale Stock transferred under clause (i) above (which Co-Sale Stock shall no longer be subject to the co-sale rights of the Non-Selling Investors), as if it were an original Selling Stockholder hereunder. Such such transferred Selling Stockholder Shares Co-Sale Stock shall remain “Selling Stockholder Shares” "Co-Sale Stock" hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 shall not apply to the sale of any Selling Stockholder Shares to the public pursuant to a registration statement filed with, and declared effective by, the Commission under the Securities Act.
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.a
Appears in 1 contract
Samples: Right of First Refusal and Co Sale Agreement (Symbion Inc/Tn)
Exempt Transfers. (a) Notwithstanding the foregoing, the foregoing right of first refusal offer of the Stockholders and co-sale rights of the Company and/or the Investors set forth in Section 5 above shall not apply to (i) any transfer without consideration or transfers by a Stockholder which in the aggregate, over the term of this Agreement, amount to no more than fifty thousand (50,000) shares of Stockholder Stock held by a Stockholder as of the date hereof (as adjusted for stock splits, dividends and the like), (ii) any transfer to the Selling Stockholder’s ancestors, descendants or spouse of the Stockholder or to trusts for the benefit of such persons or the Selling Stockholder, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) a transfer by a Stockholder which is (A) a partnership to either its partners or former partners in accordance with partnership interests, or to its affiliated entities, (B) a corporation to its shareholders in accordance with their interest in the corporation, or (C) a limited liability company to its members or former members in accordance with their interest in the limited liability company, (iv) any pledge of Selling Stockholder Shares Stock made pursuant to a bona fide BONA FIDE loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling StockholderBONA FIDE gift; provided PROVIDED that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (A) the Selling Stockholder shall inform the Investors other Stockholders and the Company of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the other Stockholders and the Company with a written agreement to be bound by and comply with all provisions of this AgreementSection 2. Except with respect to Stockholder Stock transferred under clause (i) above (which Stockholder Stock shall no longer be subject to the right of first refusal and co-sale rights of the Investors), as if it were an original Selling such transferred Stockholder hereunder. Such transferred Selling Stockholder Shares Stock shall remain “Selling Stockholder Shares” "STOCKHOLDER STOCK" hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” a "STOCKHOLDER" for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 2 shall not apply to the sale of any Selling Stockholder Shares Stock to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities ActAct of 1933, as amended (the "SECURITIES ACT").
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling a Stockholder pursuant to a stock restriction agreement agreement, the Company's Bylaws or other agreement between the Company and the Selling Stockholder.
Appears in 1 contract
Samples: Right of First Offer and Co Sale Agreement (Elitra Pharmaceuticals Inc)
Exempt Transfers. (ai) Subject to the provisions in paragraph 3(b)(ii), the restrictions set forth in this paragraph 3 shall not apply to any Transfer by a Stockholder with respect to any of the following Transfers (each an "EXEMPT TRANSFER"):
(A) any Transfer of Stockholder Shares by a Stockholder who is not a natural person to such Stockholder's Affiliates, including, in the case of MDCP, any Transfer which constitutes an in-kind distribution to its partners (and, in connection with or following any such distribution, an in-kind distribution by the general partner of MDCP to its partners);
(B) in the case of a Stockholder who is a natural person, any Transfer by will or pursuant to the applicable laws of descent and distribution or Transfers to or among such holder's Affiliates, any members of such holder's Family Group or such Family Group member's Affiliates;
(C) any Transfer of Stockholder Shares in connection with an Approved Sale;
(D) any Transfer by MDCP of its Stockholder Shares to one or more Co-Investors (other than to a Competitor or such Competitor's Affiliates) during the first six months after the Closing, so long as immediately following the last to occur of such Transfers, MDCP and its Permitted Transferees hold in the aggregate shares of Class A Common Stock with an aggregate original cost of not less than $350 million; or
(E) any Transfer by the Executives of their Stockholder Shares to the Company or any of its Subsidiaries.
(ii) A transferee of Stockholder Shares pursuant to a Transfer described in paragraphs 3(b)(i)(A) and (B) above are referred to herein as a "PERMITTED TRANSFEREE." The restrictions contained in paragraph 3(a) shall continue to be applicable to the Stockholder Shares after any Transfer pursuant to paragraphs 3(b)(i)(A), (B) and (D), and such transferees of such Stockholder Shares shall agree in writing to be bound by the provisions of this Agreement affecting the Stockholder Shares so transferred. Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above no party hereto shall not apply to (i) any transfer without consideration to the Selling Stockholder’s ancestors, descendants or spouse or to trusts for the benefit of such persons or the Selling Stockholder, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (A) the Selling Stockholder shall inform the Investors of such transfer prior to effecting it and (B) the transferee shall enter into a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder hereunder. Such transferred Selling Stockholder Shares shall remain “Selling Stockholder Shares” hereunder, and such transferee shall be treated as the “Selling Stockholders” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, avoid the provisions of this Section 5 shall not apply Agreement by making one or more Transfers to one or more Permitted Transferees and then disposing of all or any portion of such party's interest in any such Permitted Transferee. Notwithstanding anything herein to the sale of contrary, in no event shall any Selling Stockholder Shares to the public pursuant to a registration statement filed with, and declared effective by, the Commission under the Securities Act.
(c) This Agreement is subject to, and shall be pledged unless otherwise approved in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company writing by MDCP and the Selling StockholderMitchell Investors.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above Stockholder shall not apply to (i) any transfer without consideration or transfers by the Founder which in the aggregate, over the term of this Agreement, amount to no more than fifteen percent (15%) of the Co-Sale Stock held by the Founder as of the date hereof, (ii) any pledge of Co-Sale Stock made pursuant to a bona fide loan transaction with a financial institution that creates a mere security interest to the Selling Stockholder’s extent permitted under the Amended and Restated Guaranty Agreement of the Founder dated August 26, 1997, (iii) any transfer to the ancestors, descendants or spouse or to trusts for the benefit of such persons or the Selling StockholderFounder, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii3(a)(ii), (iii), (iv) and (viv), (A) the Selling Stockholder Founder shall inform the Investors Stockholder of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Stockholder with a written agreement to be bound by and comply with all provisions of this AgreementSection 2. Except with respect to Co-Sale Stock transferred under clause (i) above (which Co-Sale Stock shall no longer by subject to the co-sale rights of the Stockholder), as if it were an original Selling Stockholder hereunder. Such such transferred Selling Stockholder Shares Co-Sale Stock shall remain “Selling Stockholder Shares” "Co-Sale Stock" hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” "Founder" for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 2 shall not apply to the sale of any Selling Stockholder Shares Co-Sale Stock to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act").
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
Appears in 1 contract
Exempt Transfers. (a) 3.1 Notwithstanding the foregoing, the right of first refusal rights of the Investors set forth in Section 2.2 and co-sale rights of the Company and/or the Investors set forth in Section 5 above 2.3 shall not apply to (i) any transfer or transfers by a Founder which in the aggregate, over the term of this Agreement, amount to no more than .05% of the outstanding capital stock, (ii) any transfer without consideration therefor to the Selling Stockholder’s ancestors, descendants or spouse or to trusts for the benefit of such persons or the Selling StockholderFounder, (iiiii) any transfer or transfers by a Selling Stockholder Founder to another Selling Stockholder Founder (the “"Transferee-Selling Stockholder”Founder") so long as the Transferee-Selling Stockholder Founder is, at the time of the Transfertransfer, employed by or acting as a consultant or director of the Company, (iiiiv) any pledge of Selling Stockholder Shares Founder Stock made pursuant to a bona fide loan transaction that creates a mere security interest, (ivv) any bona fide gift, or (vvi) any transfer to an Affiliate of such Selling Stockholderor transfers in connection with that certain letter agreement dated June 11, 1999, among Richxxx Xxxxxxx, xxe Company, Oak Investment Partners and Sequoia Capital; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (A) the Selling Stockholder Founder shall inform the Investors of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Investors with a written agreement to be bound by and comply with all provisions of this AgreementSection 2. Except with respect to Founder Stock transferred under clauses (i) and (vi) above (which Founder Stock shall no longer be subject to the right of first refusal and co-sale rights of the Investors), as if it were an original Selling Stockholder hereunder. Such such transferred Selling Stockholder Shares Founder Stock shall remain “Selling Stockholder Shares” "Founder Stock" hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” "Founder" for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) 3.2 Notwithstanding the foregoing, the provisions of this Section 5 2 shall not apply to the sale of any Selling Stockholder Shares to the public Founder Stock pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act").
(c) 3.3 This Agreement is subject to, to and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder Founder pursuant to a stock restriction agreement or other agreement between the Company and the Selling StockholderFounder.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 pursuant to Sections 3.1 and 3.2 above shall not apply to (i) any transfer without consideration or transfers by a Key Stockholder which, in the aggregate, over the term of this Agreement, amount to no more than ten percent (10%) of the shares of Key Stockholder Stock held by a Key Stockholder as of the date hereof, (ii) any pledge of Co-Sale Stock made pursuant to a bona fide loan transaction with a financial institution that creates a mere security interest, (iii) any transfer to the Selling Stockholder’s ancestors, descendants or spouse of the Key Stockholders or Investors or to trusts for the benefit of such persons persons, the Key Stockholder or the Selling Stockholderan Investor, (iiiv) any transfer or transfers by a Selling Key Stockholder to another Selling Key Stockholder (the “"Transferee-Selling Key Stockholder”) "), so long as the Transferee-Selling Key Stockholder is, at the time of the Transfertransfer, employed by or acting as a consultant or director of the CompanyCompany or any transfer by an Investor to another Investor, (iiiv) any pledge transfer or transfers to any Affiliate of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interestan Investor, or (ivvi) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv), (v) and (vvi), (A) the Selling Key Stockholder or Investor, as applicable, shall inform the Company and the Investors of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee, prior to the completion of the pledge, transfer, gift or assignment, shall enter into a written agreement have executed documents assuming the obligations of the Key Stockholder or Investor under this Agreement with respect to the Key Stockholder Stock or Investor Stock pledged, transferred, given or assigned to such person. Except with respect to Key Stockholder Stock transferred under clause (i) above (which Stock shall no longer be bound by and comply with all provisions subject to the co-sale rights of this Agreementthe Investors), as if it were an original Selling Stockholder hereunder. Such such transferred Selling Stockholder Shares Stock shall remain “Selling Stockholder Shares” "Co-Sale Stock" hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” "Key Stockholder" or "Investor," as applicable, for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 Sections 3.1 and 3.2 shall not apply to the sale of any Selling Stockholder Shares Co-Sale Stock to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act").
(c) This Agreement is subject to, and shall in no manner limit the right which that the Company may have to repurchase securities from the Selling Stockholder Key Stockholders or any Investor pursuant to (i) a stock restriction agreement or other agreement between the Company and the Selling StockholderKey Stockholder or such Investor and (ii) any right of first refusal set forth in the Bylaws of the Company.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and of the Company and, except with respect to clause (v) (which shall not apply to the co-sale rights right), the co-sale right of the Company and/or the Investors and Common Holders set forth in Section 5 4 above shall not apply to to: (i) any transfer without consideration to the Selling Stockholderan Investor’s ancestors, descendants descendants, siblings or spouse spouse, or to trusts a trust or family limited partnership for the benefit of such persons or the Selling Stockholder, Investor; (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares shares made pursuant to a bona fide loan transaction that creates a mere security interest, ; (iii) any bona fide gift to a charitable or tax-exempt organization; (iv) any bona fide gift, or Transfer approved by the Investors holding at least a majority-in-interest of the capital stock then held by the Investors; (v) any transfer to another Investor or affiliate of an Affiliate Investor or (vi) any repurchase of shares by the Company pursuant to agreements under which the Company has the option to repurchase such Selling Stockholdershares upon the occurrence of certain events, such as termination of employment, or in connection with the exercise by the Company of any rights of first refusal; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and ), (v)) above, (A) the Selling Stockholder Investor shall inform the Investors Company of such pledge, transfer or gift prior to effecting it it, and (B) the pledgee, transferee or donee shall enter into a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder Investor hereunder. Such Any Shares transferred Selling Stockholder Shares pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) above or (v) above shall remain “Selling Stockholder Sharesshares” hereunder, and such pledgee, transferee or donee shall be treated as the “Selling StockholdersInvestor” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 shall not apply to the sale of any Selling Stockholder Shares to the public pursuant to a registration statement filed with, and declared effective by, the Commission under the Securities Act.
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding anything to the foregoingcontrary contained herein, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above Series A Holders shall not apply to (ia) any sale or transfer of Restricted Shares to the Company pursuant to a repurchase right or right of first refusal held by the Company in the event of a termination of employment or consulting relationship; (b) the transfer of 1,350,000 Ordinary Shares indirectly held by Mr. HE Boquan to Mx. XXXXX Cxxx-Xxx according to Section 5.10(c) of the Purchase Agreement; (c) any transfer without consideration to the Selling Stockholder’s ancestorsparents, descendants children or spouse spouse, or to trusts for the benefit of such persons or the Selling Stockholderpersons, of any Ordinary Holder by such Ordinary Holder for bona fide estate planning purposes; (iid) any transfer of Restricted Shares from any Ordinary Holder to the corresponding persons under the caption “Ultimate Holder” as set forth in Schedule B hereto, in each case not exceeding the number of Restricted Shares set forth opposite the name of such persons and under the caption “Number of Shares” in Schedule B (subject to adjustment for share splits, share dividends, share combinations, reclassifications or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, similar events); or (ve) any transfer of Ordinary Shares by any Ordinary Holder to an Affiliate any subsidiary whose voting equity securities are 100% owned by such Ordinary Holder, a parent company owning, directly or indirectly, 100% of the voting equity securities or equity interest in such Selling StockholderOrdinary Holder, or a subsidiary (directly or indirectly) whose voting equity securities are 100% owned by such parent company (each transferee pursuant to the foregoing clauses (a) - (e), a “Permitted Transferee”); provided that in the event of any transfer made pursuant adequate documentation therefor is provided to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (A) the Selling Stockholder shall inform the Investors of to their satisfaction and that any such transfer prior to effecting it and (B) the transferee shall enter into a written agreement Permitted Transferee agrees in writing to be bound by and comply with all provisions this Agreement in place of this Agreementthe relevant transferor; provided, as if it were an original Selling Stockholder hereunder. Such transferred Selling Stockholder Shares further, that such transferor shall remain “Selling Stockholder Shares” hereunder, and liable for any breach by such transferee shall be treated as the “Selling Stockholders” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 shall not apply to the sale Permitted Transferee of any Selling Stockholder Shares to the public pursuant to a registration statement filed with, and declared effective by, the Commission under the Securities Actprovision hereunder.
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above Purchasers and Covalent Partners shall not apply to (i) any transfer without consideration or transfers which, in the aggregate, over the term of this Agreement, amount to not more than twenty percent (20%) of the Selling Stockholder’s ancestorsshares of Co-Sale Stock held by such transferring stockholder as of the date hereof (as adjusted for stock splits, descendants or spouse or to trusts for dividends and the benefit of such persons or the Selling Stockholderlike), (ii) any transfer to a stockholder partner or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder ismember of, at the time of the Transferor any entity that controls, employed is controlled by or acting as under common control with, Covalent Partners or a consultant or director of the CompanyPurchaser, (iii) any pledge of Selling Stockholder Shares Co-Sale Stock made pursuant to a bona fide loan transaction that creates a mere security interest, or (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (viv), (A) Covalent Partners or the Selling Stockholder Purchaser shall inform the Investors party
1. holding the co-sale rights of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Purchasers or Covalent Partners, as applicable, with a written agreement to be bound by and comply with all provisions of this Agreement. Except with respect to Co-Sale Stock transferred under clause (i) above (which Co-Sale Stock shall no longer be subject to the co-sale rights), as if it were an original Selling Stockholder hereunder. Such such transferred Selling Stockholder Shares Co-Sale Stock shall remain “Selling Stockholder Shares” "Co-Sale Stock" hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” a "Purchaser" or "Covalent Partners", as applicable, for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 3 and Section 5 shall not apply to the sale of any Selling Stockholder Shares Co-Sale Stock to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act").
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding the foregoingforegoing or anything to the contrary herein, the right provisions of first refusal Section 6.1, Section 6.2 and co-sale rights of the Company and/or the Investors set forth in Section 5 above 6.3 shall not apply to apply: (i) any transfer without consideration to a repurchase of Shares from a Restricted Shareholder by the Selling Stockholder’s ancestors, descendants or spouse or Company at a price no greater than that originally paid by such Restricted Shareholder for such Shares and pursuant to trusts for an agreement containing vesting and/or repurchase provisions approved by a majority of the benefit Board including the affirmative vote of such persons or the Selling StockholderPreferred Directors, (ii) in the case of a Restricted Shareholder that is a natural person, upon a gratuitous transfer of Shares by such Restricted Shareholder (including on death by will or intestacy) to an Immediate Family Member of such Restricted Shareholder, or to a custodian, trustee, executor, or other fiduciary for the account of such Restricted Shareholder’s Immediate Family Member, or to a trust for such Restricted Shareholder’s own self, in each case for bona fide estate and/or tax planning purposes, provided that (A) each such transferee or assignee, prior to the completion of the sale, shall have executed documents assuming the obligations of the transferring Restricted Shareholder under this Agreement with respect to the transferred Shares; and provided further that any such transfer or transfers distribution shall comply with applicable Law and regulations, including without limitation any requirement for the transferee to make any required filings with SAFE pursuant to Circular 75 issued by a Selling Stockholder to another Selling Stockholder the State Administration of Foreign Exchange of the PRC (the “Transferee-Selling StockholderSAFE”) so long as the Transferee-Selling Stockholder ison October 21, at the time 2005 (and any successor regulation) (“Circular 75”) and (B) any such transfer shall not exceed ten percent (10%) of the Transfer, employed total shares held by or acting as a consultant or director of the Companysuch Restricted Shareholder, (iii) in the case of a Restricted Shareholder that is an entity, upon a transfer by such Restricted Shareholder to an Affiliate provided that the transferee, prior to the completion of the sale, shall have executed documents assuming the obligations of the transferring Shareholder under this Agreement with respect to the transferred Shares, and provided further that any pledge of Selling Stockholder Shares made such transfer or distribution shall comply with applicable Law and regulations, including without limitation any requirement for the transferee to make any required filings with SAFE pursuant to a bona fide loan transaction that creates a mere security interestCircular 75, (iv) the sale of any bona fide giftShares to the public in a Qualifying IPO, or (v) any in the case of an Investor that is an entity, upon a transfer by such Investor to an Affiliate of such Selling Stockholdera transferee that is a subsidiary, Affiliate, parent, partner, member, limited partner, retired partner, retired member or shareholder; provided that in the event of any transfer made pursuant to one each of the exemptions provided by clauses (i)above cases such transferee or assignee, (ii), (iii), (iv) and (v), (A) the Selling Stockholder shall inform the Investors of such transfer prior to effecting it and (B) the transferee completion of the sale, shall enter into a written agreement have executed documents assuming the obligations of the transferring Shareholder under this Agreement with respect to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder hereunder. Such the transferred Selling Stockholder Shares shall remain “Selling Stockholder Shares” hereunder, and such transferee shall be treated as the “Selling Stockholders” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoingforegoing or anything to the contrary herein, the provisions of this Section 5 6.1, Section 6.2, and Section 6.3 shall not apply to the sale of any Selling Stockholder Shares to the public pursuant to in a registration statement filed with, and declared effective by, Qualifying IPO (as defined in the Commission under the Securities ActPurchase Agreement).
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
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Exempt Transfers. (ai) Notwithstanding anything to the foregoingcontrary in this Agreement, the right provisions of first refusal Section 6.1 and co-sale rights of the Company and/or the Investors set forth in Section 5 above 6.2 shall not apply to (iA) any transfer without consideration to the Selling Transfer by a Stockholder of all or any portion of its Shares to any Affiliate of such Stockholder, (B) to the Transfer by an AHG Stockholder of all or any portion of its Shares to any equityholder of such AHG Stockholder, (C) to a repurchase of Shares from a Stockholder by the Corporation at a price no greater than that originally paid by such Stockholder for such Shares and pursuant to an agreement containing vesting or repurchase provisions approved by the Board or (D) in the case of a Stockholder that is a natural person, upon a Transfer of Shares by such Stockholder made for bona fide estate planning purposes, either during such Person’s ancestorslifetime or on death by will or intestacy to such Person’s Family Members or any custodian or trustee of any trust, descendants partnership, limited liability company or spouse or to trusts other corporate entity for the benefit of such persons of, or the Selling Stockholder, (ii) ownership interests of which are owned wholly by such Stockholder or any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling StockholderFamily Members; provided that in the event case of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (ivclause(s) and (v), (A) the Selling or (C), such Stockholder shall inform deliver written notice to the Investors Corporation and the Major Stockholders of such transfer prior gift or Transfer and such Shares shall at all times remain subject to effecting it the terms and (B) the restrictions set forth in this Agreement and such transferee shall enter into a written agreement to be bound by and comply with all provisions of this Agreementshall, as if it were an original Selling Stockholder hereunder. Such transferred Selling Stockholder Shares shall remain “Selling Stockholder Shares” hereundera condition to such Transfer, and deliver a Joinder Agreement such that such transferee shall be treated as bound by all the “Selling Stockholders” for purposes terms and conditions of this Agreement; and provided, except further, in the case of any transfer pursuant to clause (C), that such transferee may not transfer shares Transfer is made pursuant to Section 4.4 hereofa transaction in which there is no consideration actually paid for such Transfer.
(bii) Notwithstanding anything to the foregoingcontrary in this Agreement, the provisions of this Section 5 6.2 shall not apply to the sale Transfer of Shares by any Selling Stockholder and its Affiliates (other than Cupar and its Affiliates) that would otherwise be subject to Section 6.2 within any ninety (90) consecutive day period in an aggregate amount of less than four percent (4%) of the Outstanding Shares as of such time of determination; provided, however, that if the number of Shares to be Transferred by such Selling Stockholder, after giving effect to any proposed Transfer and taken together with the public pursuant aggregate number of Shares previously Transferred by such Selling Stockholder and its Affiliates in reliance on the exemption provided by this Section 6.4(a)(ii) within the trailing twelve (12) month period would exceed eight percent (8%) of the Outstanding Shares as of such time of determination (any such transaction or series of transactions, an “Excess 8% Transaction”), any and all Shares to a registration statement filed withbe Transferred by such Selling Stockholder in such Excess 8% Transaction shall be subject to the provisions of Section 6.2; provided, further, that, for the avoidance of doubt, any Transfer of Shares prior to such Excess 8% Transaction and declared effective bywithin the trailing twelve (12) month period shall not be subject to the provisions of Section 6.2. For the avoidance of doubt, the Commission under exemption provided by this Section 6.4(a)(ii) shall not apply to the Securities ActTransfer of any Shares by Cupar or its Affiliates.
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
Appears in 1 contract
Samples: Stockholders Agreement (WeWork Inc.)
Exempt Transfers. (a) 3.1 Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 2 above shall not apply to (i) any transfer or transfers by a Key Holder which in the aggregate, over the term of this Agreement, including any amendments hereto, amount to no more than five percent (5%) of the shares of Key Holder Stock held by a Key Holder as of the date hereof (as adjusted for stock splits, dividends and the like), (ii) any transfer without consideration to the Selling StockholderKey Holder’s ancestors, descendants or spouse descendants, spouse, Affiliates or to trusts for the benefit of such persons or the Selling StockholderKey Holder, (iiiii) any transfer or transfers by a Selling Stockholder Key Holder to another Selling Stockholder Key Holder (the “Transferee-Selling StockholderKey Holder”) so long as the Transferee-Selling Stockholder Key Holder is, at the time of the Transfertransfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, and (iv) all transfers occurring pursuant to the Tender Offer and all future transfers of any bona fide gift, or (v) any transfer to an Affiliate of such Selling StockholderTender Offer Shares; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), or (iv) and (v), (A) the Selling Stockholder Key Holder, other than in connection with any transfers of Key Holder Stock made in connection with the Tender Offer, shall inform the Investors of such transfer prior to effecting it and (B) the transferee shall enter into a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder Key Holder hereunder, including without limitation Section 2. Such transferred Selling Stockholder Shares Key Holder Stock shall remain “Selling Stockholder SharesKey Holder Stock” hereunder, and such pledgee, transferee or donee shall be treated as the “Selling StockholdersKey Holder” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 3.1(i) hereof.
(b) 3.2 Notwithstanding the foregoing, the provisions of this Section 5 2 shall not apply to the sale of any Selling Stockholder Shares Key Holder Stock to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”).
(c) This 3.3 Subject to the Foundation Rights, the USV Rights and the KPCB Rights and the obligations described in Section 3.4 below, this Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder Key Holder pursuant to (i) a stock restriction agreement or other agreement between the Company and the Selling StockholderKey Holder and (ii) any right of first refusal set forth in the Bylaws of the Company.
3.4 In the event the Company may exercise any right of first refusal or repurchase right (other than rights to repurchase Common Stock from employees, officers, directors, consultants or other persons performing services for the Company at cost upon the occurrence of certain events, such as the termination of employment or service) with respect to any of the Company’s outstanding capital stock by contract or otherwise (in each case, a “Company Repurchase Option”), the Company shall, to the extent it may do so pursuant to such instrument, assign such Company Repurchase Option to Foundation, USV and/or KPCB to the extent necessary to permit Foundation, USV and/or KPCB and their respective Affiliates to attain the Foundation 15% Termination Threshold, USV 12% Termination Threshold or the KPCB 9% Termination Threshold, as applicable, subject to the following provisions:
(a) Upon the occurrence of each event giving rise to a Company Repurchase Option, the Company shall give Foundation, USV and KPCB written notice (the “Company Repurchase Option Notice”) of the occurrence of such event, describing the number of shares of capital stock subject to such Company Repurchase Option, the price and the general terms upon which the Company may elect to repurchase such shares of capital stock. Foundation, USV and KPCB shall each have fifteen (15) days after any such Company Repurchase Option Notice is mailed or delivered to it to elect to purchase that portion of the shares of capital stock described in the Company Repurchase Option Notice as it would be entitled to purchase were the repurchase of such shares subject to Section 2.2 hereof, for the price and upon the terms specified in the Company Repurchase Option Notice, by giving written notice to the Company.
(b) If Foundation, USV or KPCB gives the Company written notice that it desires to purchase a portion of such shares within such fifteen (15) day period, then the Company shall take such actions as may be necessary to assign all or any portion (as necessary to accommodate Foundation’s, USV’s and/or KPCB’s election and facilitate the transaction, including any by provision of any necessary Company consents, stock transfers, waivers or other such accommodations) of the Company Repurchase Option to Foundation, USV and/or KPCB. Any shares purchased by Foundation, USV and/or KPCB pursuant to the assignment of the Company’s Repurchase Option will not be cancelled on the books and records of the Company and will be promptly transferred and, if necessary, issued by the Company (or its transfer agent) upon the Company’s receipt of notice of the closing of the purchase and sale of the shares by Foundation, USV and/or KPCB.
(c) If either Foundation, USV or KPCB fails to purchase all or any portion of such shares within fifteen (15) days following the Company’s assignment of the Company Repurchase Option to it, then the assignment of the Company Repurchase Option shall automatically lapse and the Company may repurchase that portion of the shares of capital stock that Foundation, USV or KPCB failed to purchase by exercising the option set forth in this Section 3.4.
(d) The Company’s obligation under this Section 3.4 (i) as to Foundation, shall terminate immediately upon Foundation collectively first attaining the Foundation 15% Termination Threshold, (ii) as to USV, shall terminate immediately upon USV collectively first attaining the USV 12% Termination Threshold and (iii) as to KPCB, shall terminate immediately upon KPCB attaining the KPCB 9% Termination Threshold. The provisions of this Section 3.4 shall not be applicable to any public offering of the securities of the Company.
Appears in 1 contract
Samples: Right of First Refusal and Co Sale Agreement (LendingClub Corp)
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above Shareholders shall not apply to (i) any transfer without consideration or transfers by the Grantor which in the aggregate, over the term of this Agreement amount to no more than Ten Thousand ($10,000) dollars of Co-Sale Stock held by the Grantor as of the date hereof, (ii) any pledge of Co-Sale Stock made pursuant to a bona fide loan transaction with a financial institution that creates a mere security interest, (iii) any transfer to the Selling Stockholder’s ancestors, descendants or spouse or to trusts for the benefit of such persons or the Selling Stockholder, (ii) any transfer Grantor; or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (viv), (A) the Selling Stockholder Grantor shall inform the Investors Shareholders of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Shareholders with a written agreement to be bound by and comply with all provisions of this AgreementSection 2. Except with respect to Co-Sale Stock transferred under clause (i) above (which Co-Sale Stock shall no longer be subject to the co-sale rights of the Shareholders), as if it were an original Selling Stockholder hereunder. Such such transferred Selling Stockholder Shares Co-Sale Stock shall remain “Selling Stockholder Shares” "Co-Sale Stock" hereunder, ; and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” "Grantor" for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 2 shall not apply to the sale of any Selling Stockholder Shares Co-Sale Stock to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, amended "Securities Act").
(c) This Agreement is subject to, and shall Shall in no manner limit the right which of the Company may have to repurchase securities from the Selling Stockholder Grantor at cost pursuant to a stock restriction agreement or other agreement between the Company and the Selling StockholderGrantor.
Appears in 1 contract
Samples: Investors' Rights Agreement (Sterigenics International)
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above SUIT, TCW and Aquila shall not apply to (i) any pledge of Co-Sale Stock made pursuant to a bona fide loan transaction with a financial institution that creates a mere security interest, (ii) any transfer without consideration to the Selling Stockholder’s ancestors, descendants or spouse of Peak or to trusts for the benefit of such persons or the Selling Stockholderpersons, (iiiii) any transfer or transfers by a Selling Stockholder Peak to another Selling Stockholder (the “Transferee-Selling Stockholder”) so John Xxxxxxx xx long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of such transfer is made in connection with Jurrius' appointment to the Company's Board of Directors, (iii) any pledge of Selling Stockholder Shares made pursuant not to a bona fide loan transaction that creates a mere security interestexceed 1,000,000 shares, or (iv) any bona fide gift, or (v) any transfer to an Affiliate gift of such Selling Stockholdernot more than Peak's holdings of the Company's securities on the date hereof; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (viv), (A) the Selling Stockholder Peak shall inform the Investors SUIT, TCW and Aquila of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish SUIT, TCW and Aquila with a written agreement to be bound by and comply with all provisions of this AgreementSection 2. Except with respect to Co-Sale Stock transferred under clause (iii) above (which Co-Sale Stock shall no longer be subject to the co-sale rights of SUIT, as if it were an original Selling Stockholder hereunder. Such TCW and Aquila), such transferred Selling Stockholder Shares Co-Sale Stock shall remain “Selling Stockholder Shares” "Co-Sale Stock" hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” similarly with Peak for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 2 shall not apply to the sale of any Selling Stockholder Shares Co-Sale Stock to (i) the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act") or (ii) the Company.
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above SUIT and TCW shall not apply to (i) any pledge of Co-Sale Stock made pursuant to a bona fide loan transaction with a financial institution that creates a mere security interest, (ii) any transfer without consideration to the Selling Stockholder’s ancestors, descendants or spouse of Peak or to trusts for the benefit of such persons or the Selling Stockholderpersons, (iiiii) any transfer or transfers by a Selling Stockholder Peak to another Selling Stockholder (the “Transferee-Selling Stockholder”) so John Xxxxxxx xx long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of such transfer is made in connection with Jurrius' appointment to the Company's Board of Directors, (iii) any pledge of Selling Stockholder Shares made pursuant not to a bona fide loan transaction that creates a mere security interestexceed 1,000,000 shares, or (iv) any bona fide gift, or (v) any transfer to an Affiliate gift of such Selling Stockholdernot more than Peak's holdings of the Company's securities on the date hereof; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (viv), (A) the Selling Stockholder Peak shall inform the Investors SUIT and TCW of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish SUIT and TCW with a written agreement to be bound by and comply with all provisions of this AgreementSection 2. Except with respect to Co-Sale Stock transferred under clause (iii) above (which Co-Sale Stock shall no longer be subject to the co-sale rights of SUIT and TCW), as if it were an original Selling Stockholder hereunder. Such such transferred Selling Stockholder Shares Co-Sale Stock shall remain “Selling Stockholder Shares” "Co-Sale Stock" hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” similarly with Peak for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 2 shall not apply to the sale of any Selling Stockholder Shares Co-Sale Stock to (i) the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act") or (ii) the Company.
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
Appears in 1 contract
Samples: Co Sale Agreement (Southern Ute Indian Tribe Dba Suite Growth Fund)
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above shall not apply to (i) any pledge of Co-Sale Stock made by a Common Stockholder pursuant to a bona fide loan transaction with a financial institution that creates a mere security interest, (ii) any transfer without consideration to the Selling Stockholder’s ancestors, descendants or spouse or to trusts for the benefit of such persons or the Selling Common Stockholder, (ii) any transfer ; or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v)hereunder, (A) the Selling Common Stockholder shall inform the Investors of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Investors with a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder hereunderSection 6.1. Such transferred Selling Stockholder Shares Co-Sale Stock shall remain “Selling Stockholder Shares” "Co-Sale Stock" hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” "Common Stockholder" for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 6.1 shall not apply to the sale of any Selling Stockholder Shares Co-Sale Stock (i) to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act, or (ii) to the Company. The Co-Sale Rights set forth in this Section 6 shall terminate upon the closing of a Qualified Public Offering.
(c) This Agreement is subject to, and shall in no manner limit the right which of the Company may have to repurchase securities from the Selling Common Stockholder at cost pursuant to a stock restriction agreement or other agreement between the Company and the Selling Common Stockholder.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and coCo-sale rights Sale Rights of the Company and/or Investors shall not apply to any sale of Stock by the Original Shareholders which, together with all other sales of Stock hereafter by the Original Shareholders, constitute 1,347,429 or less of the aggregate number of shares of Common Stock held by the Original Shareholders, and the Rights of First Refusal and Co-Sale Rights of the Investors set forth in Section 5 above shall not apply to (i) any transfer without consideration to the Selling Stockholder’s ancestors, descendants or spouse or to trusts for the benefit of such persons or the Selling Stockholder, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares Stock made pursuant to a bona fide loan transaction that creates a mere security interest, (ivii) any transfer to the ancestors, descendants or spouse or to mists for the benefit of such persons or an Original Shareholder, (iii) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), that: (A) the Selling Stockholder transferring Original Shareholder shall inform the Investors Investor of such pledge, transfer or gift prior to effecting it it, and obtain the consent of each of the Investors (not to be unreasonably withheld); and (B) the pledgee, transferee or donee shall enter into furnish each of the Investors with a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder hereunderSections 2 and 3. Such written agreement shall be in form and substance satisfactory to the Investors in their sole discretion. The transferred Selling Stockholder Shares Stock shall remain “Selling Stockholder Shares” "Stock" hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” an "Original Shareholder" for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 Sections 2 and 3 shall not apply to the sale of any Selling Stockholder Shares Stock to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act.
(c) This Agreement is subject to"), and shall or the acquisition of the Company by another entity by means of merger or consolidation resulting in no manner limit the right exchange of the outstanding shares of the Company's capital stock for securities or consideration issued by the acquiring company, in which exchange all shareholders of the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholderparticipate.
Appears in 1 contract
Samples: Right of First Refusal and Co Sale Agreement (Clontech Laboratories Inc)
Exempt Transfers. (a) 3.1 Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 2 above shall not apply to (i) any transfer or transfers by a Key Holder which in the aggregate, over the term of this Agreement, including any amendments hereto, amount to no more than five percent (5%) of the shares of Key Holder Stock held by a Key Holder as of the date hereof (as adjusted for stock splits, dividends and the like), (ii) any transfer without consideration to the Selling StockholderKey Holder’s ancestors, descendants or spouse descendants, spouse, Affiliates or to trusts for the benefit of such persons or the Selling StockholderKey Holder, (iiiii) any transfer or transfers by a Selling Stockholder Key Holder to another Selling Stockholder Key Holder (the “Transferee-Selling StockholderKey Holder”) so long as the Transferee-Selling Stockholder Key Holder is, at the time of the Transfertransfer, employed by or acting as a consultant or director of the Company, and (iiiiv) any pledge all future transfers of Selling Stockholder Shares made shares that were transferred pursuant to a bona fide loan transaction that creates a mere security interesttender offer in which KPCB Holdings, (iv) any bona fide gift, or (v) any transfer to an Affiliate Inc. acquired certain shares of such Selling StockholderKey Holder Stock; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), or (iv) and (v), (A) the Selling Stockholder Key Holder, other than in connection with any transfers of Key Holder Stock made in connection with the Tender Offer, shall inform the Investors of such transfer prior to effecting it and (B) the transferee shall enter into a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder Key Holder hereunder, including without limitation Section 2. Such transferred Selling Stockholder Shares Key Holder Stock shall remain “Selling Stockholder SharesKey Holder Stock” hereunder, and such pledgee, transferee or donee shall be treated as the “Selling StockholdersKey Holder” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 3.1(i) hereof.
(b) 3.2 Notwithstanding the foregoing, the provisions of this Section 5 2 shall not apply to the sale of any Selling Stockholder Shares Key Holder Stock to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”).
(c) This 3.3 Subject to the Foundation Rights, the USV Rights and the KPCB Rights and the obligations described in Section 3.4 below, this Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder Key Holder pursuant to (i) a stock restriction agreement or other agreement between the Company and the Selling StockholderKey Holder and (ii) any right of first refusal set forth in the Bylaws of the Company.
3.4 In the event the Company may exercise any right of first refusal or repurchase right (other than rights to repurchase Common Stock from employees, officers, directors, consultants or other persons performing services for the Company at cost upon the occurrence of certain events, such as the termination of employment or service) with respect to any of the Company’s outstanding capital stock by contract or otherwise (in each case, a “Company Repurchase Option”), the Company shall, to the extent it may do so pursuant to such instrument, assign such Company Repurchase Option to Foundation, USV and/or KPCB to the extent necessary to permit Foundation, USV and/or KPCB and their respective Affiliates to attain the Foundation 15% Termination Threshold, USV 12% Termination Threshold or the KPCB 9% Termination Threshold, as applicable, subject to the following provisions:
(a) Upon the occurrence of each event giving rise to a Company Repurchase Option, the Company shall give Foundation, USV and KPCB written notice (the “Company Repurchase Option Notice”) of the occurrence of such event, describing the number of shares of capital stock subject to such Company Repurchase Option, the price and the general terms upon which the Company may elect to repurchase such shares of capital stock. Foundation, USV and KPCB shall each have fifteen (15) days after any such Company Repurchase Option Notice is mailed or delivered to it to elect to purchase that portion of the shares of capital stock described in the Company Repurchase Option Notice as it would be entitled to purchase were the repurchase of such shares subject to Section 2.2 hereof, for the price and upon the terms specified in the Company Repurchase Option Notice, by giving written notice to the Company.
(b) If Foundation, USV or KPCB gives the Company written notice that it desires to purchase a portion of such shares within such fifteen (15) day period, then the Company shall take such actions as may be necessary to assign all or any portion (as necessary to accommodate Foundation’s, USV’s and/or KPCB’s election and facilitate the transaction, including any by provision of any necessary Company consents, stock transfers, waivers or other such accommodations) of the Company Repurchase Option to Foundation, USV and/or KPCB. Any shares purchased by Foundation, USV and/or KPCB pursuant to the assignment of the Company’s Repurchase Option will not be cancelled on the books and records of the Company and will be promptly transferred and, if necessary, issued by the Company (or its transfer agent) upon the Company’s receipt of notice of the closing of the purchase and sale of the shares by Foundation, USV and/or KPCB.
(c) If either Foundation, USV or KPCB fails to purchase all or any portion of such shares within fifteen (15) days following the Company’s assignment of the Company Repurchase Option to it, then the assignment of the Company Repurchase Option shall automatically lapse and the Company may repurchase that portion of the shares of capital stock that Foundation, USV or KPCB failed to purchase by exercising the option set forth in this Section 3.4.
(d) The Company’s obligation under this Section 3.4 (i) as to Foundation, shall terminate immediately upon Foundation collectively first attaining the Foundation 15% Termination Threshold, (ii) as to USV, shall terminate immediately upon USV collectively first attaining the USV 12% Termination Threshold and (iii) as to KPCB, shall terminate immediately upon KPCB attaining the KPCB 9% Termination Threshold. The provisions of this Section 3.4 shall not be applicable to any public offering of the securities of the Company.
Appears in 1 contract
Samples: Right of First Refusal and Co Sale Agreement (LendingClub Corp)
Exempt Transfers. (ai) Subject to the provisions in paragraph 3(b)(ii), the restrictions set forth in this paragraph 3 shall not apply to any Transfer by a Stockholder with respect to any of the following Transfers (each an "EXEMPT TRANSFER"):
(A) any Transfer of Stockholder Shares by a Stockholder who is not a natural person to such Stockholder's Affiliates, including, in the case of MDCP and the Quadrangle Investors, any Transfer which constitutes an in-kind distribution to its partners (and, in connection with or following any such distribution, an in-kind distribution by the general partner of MDCP or any of the Quadrangle Investors to its partners);
(B) in the case of a Stockholder who is a natural person, any Transfer by will or pursuant to the applicable laws of descent and distribution and any Transfer to or among such Stockholder's Affiliates, and members of such holder's Family Group or such Family Group member's Affiliates;
(C) any Transfer of Stockholder Shares in connection with an Approved Sale;
(D) any Transfer by the Executives of their Stockholder Shares to the Company or any of its Subsidiaries; or
(E) any Transfer by the Company to an Executive pursuant to paragraph 9 hereunder.
(ii) A transferee of Stockholder Shares pursuant to a Transfer described in paragraphs 3(b)(i)(A) and (B) above is referred to herein as a "PERMITTED TRANSFEREE." The restrictions contained in paragraph 3(a) shall continue to be applicable to the Stockholder Shares after any Transfer pursuant to paragraphs 3(b)(i)(A), (B) and (E), and such transferees of such Stockholder Shares shall agree in writing to be bound by the provisions of this Agreement affecting the Stockholder Shares so transferred. Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above no party hereto shall not apply to (i) any transfer without consideration to the Selling Stockholder’s ancestors, descendants or spouse or to trusts for the benefit of such persons or the Selling Stockholder, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (A) the Selling Stockholder shall inform the Investors of such transfer prior to effecting it and (B) the transferee shall enter into a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder hereunder. Such transferred Selling Stockholder Shares shall remain “Selling Stockholder Shares” hereunder, and such transferee shall be treated as the “Selling Stockholders” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, avoid the provisions of this Section 5 shall not apply Agreement by making one or more Transfers to one or more Permitted Transferees and then disposing of all or any portion of such party's interest in any such Permitted Transferee. Notwithstanding anything herein to the sale of contrary, in no event shall any Selling Stockholder Shares to the public pursuant to a registration statement filed with, and declared effective by, the Commission under the Securities Act.
(c) This Agreement is subject to, and shall be pledged unless otherwise approved in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company writing by MDCP and the Selling StockholderXxxxxxxx Investors.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and the co-sale rights of the Company and/or and the Investors set forth in Section 5 above shall not apply to (i) any transfer without consideration Transfer to the Selling Stockholder’s ancestors, descendants or spouse of the Common Stockholders or to trusts for the benefit of such persons or the Selling Stockholderpersons, (ii) any transfer Transfer or transfers Transfers by a Selling Common Stockholder to another Selling Common Stockholder (or to an individual employed by the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, Company at the time of such transfer (the Transfer"Employee"), employed by but only if the transferring Common Stockholder first offers the shares to all other Common Stockholders or acting Employees, as a consultant or director applicable, and each member of the Companyapplicable group is allowed to participate pro rata with the other members of that group, (iii) any pledge of Selling Stockholder Shares Stock made pursuant to a bona fide loan transaction that creates a mere security interest; (iv) any Transfer by a Common Stockholder which is a partnership, limited liability company or corporation to the partners, members or stockholders of such entity without the payment of consideration therefor, (ivv) any bona fide gift, or (vvi) any transfer the exchange by GP Strategies Corporation, a Delaware corporation ("GP Strategies"), of shares of Common Stock of the Company for 6% Convertible Exchangeable Subordinated Notes due 2003 issued by GP Strategies pursuant to an Affiliate the terms of the Note Agreement dated June 30, 2000, among GP Strategies and the holders of such Selling Stockholdernotes; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and ), (v), or (vi), (A) the Selling Stockholder transferor shall inform the Investors of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Investors with a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder hereunder. Such transferred Selling Stockholder Shares Stock shall remain “Selling Stockholder Shares” "Stock" hereunder, and such pledgee, transferee or donee shall be treated as a "Common Stockholder" (to the “Selling Stockholders” extent such transfer was from a Common Stockholder) for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section Sections 3, 4, and 5 shall not apply to the sale of any Selling Stockholder Shares Stock to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act").
(c) This Agreement is subject to, and shall in no manner limit the limit, any other right which that the Company may have to repurchase securities from the Selling Stockholder Common Stockholders pursuant to a stock restriction agreement or other agreement between the Company and the Selling StockholderCommon Stockholders.
Appears in 1 contract
Samples: Right of First Refusal and Co Sale Agreement (Gp Strategies Corp)
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above Series C Purchasers shall not apply to (i) any transfer without consideration to the Selling Stockholder’s ancestors, descendants or spouse or to trusts for the benefit of such persons or the Selling Stockholder, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholdertransferring Founder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (A) the Selling Stockholder transferring Founder shall inform the Investors Series C Purchasers or the Company (which shall then inform the Series C Purchasers) of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Series C Purchasers with a written agreement to be bound by and comply with all provisions of Section 4 of this Agreement, as if it were an original Selling Stockholder hereunder. Such transferred Selling Stockholder Shares Stock shall remain “Selling Stockholder Shares” "Stock" hereunder, and such pledgee, transferee shall be treated as the “Selling Stockholders” a "Founder" for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 4 shall not apply to the sale of any Selling Stockholder Shares Stock (i) to the public pursuant to a registration statement filed with, and declared effective by, the Commission under the Securities Act1933 Act or (ii) to the Company pursuant to the terms of the Company's right of first refusal, right to purchase on involuntary transfer or repurchase rights set forth in stock purchase agreements with the Founders or in connection with the termination of a Founder's employment with the Company or (iii) if prior to such sale, the Founder held less than one percent (1%) of the Company's outstanding shares.
(c) This Agreement is subject to, and Section 4 shall in no manner limit the right which of the Company may have to repurchase securities from the Selling Stockholder Founders, consultants, employees or directors pursuant to a its repurchase rights and first refusal rights and rights to purchase upon involuntary transfers set forth in applicable stock restriction agreement or other agreement between the Company and the Selling Stockholderpurchase agreements.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding anything to the foregoingcontrary contained herein, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above Restricted Holders shall not apply to (ia) any sale or transfer of Restricted Shares from any Investor to any entity wholly-owned, directly or indirectly, by such Investor, or such Investor’s limited partners; (b) any sale or transfer of Ordinary Shares to the Company pursuant to a repurchase right or right of first refusal held by the Company in the event of a termination of employment or consulting relationship; (c) any transfer without consideration to the Selling Stockholder’s ancestorsparents, descendants or children, spouse or to grandchildren or trusts for the benefit of such persons persons, of any Founder or the Selling Stockholder, his or her Permitted Transferees for bona fide estate planning purposes; (iid) any transfer of Ordinary Shares from a Founder Entity, any permitted assignees to whom a Founder Entity’s rights under this Section 5 have been duly assigned in accordance with this Agreement, or transfers by any employee of the Company holding greater than one percent (1%) of the Ordinary Shares on a Selling Stockholder to another Selling Stockholder fully diluted and an as-if-converted basis (the each, a “Transferee-Selling StockholderPermitted Seller”) so long to any one or more other Permitted Seller(s); (e) any transfer of Ordinary Shares from any Founder Entity to the corresponding person under the caption “Founders” as set forth in Exhibit D hereto or to any entity wholly-owned, directly or indirectly, by such person, in each case not exceeding the Transferee-Selling Stockholder isnumber of Ordinary Shares set forth opposite the name of such persons and under the caption “Number of Founder Shares” in Exhibit D (subject to adjustment for share splits, share dividends, share combinations, reclassifications or similar events); or (f) any transfer from one or more Founder Entities or any of the persons listed under the caption “Founders” as set forth in Exhibit D hereto to any senior management of the PRC Companies, provided that such senior management members are employed at the time of the Transfer, employed by or acting as a consultant or director such transfer and no more than 25% of the Company, (iii) any pledge of Selling Stockholder Ordinary Shares made in the aggregate may be transferred pursuant to a bona fide loan transaction this sub-clause (f) and that creates a mere security interest, (ivsuch transfer(s) shall be subject to compliance by the transferee with any bona fide gift, applicable rule or (v) any transfer regulation under PRC Law with respect to an Affiliate the receipt of such Selling StockholderOrdinary Shares (each transferee pursuant to the foregoing clauses (a) - (f), a “Permitted Transferee”); provided that adequate documentation therefor is provided to the Company and that any such Permitted Transferee agrees in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (A) the Selling Stockholder shall inform the Investors of such transfer prior to effecting it and (B) the transferee shall enter into a written agreement writing to be bound by and comply with all provisions this Agreement in place of this Agreementthe relevant transferor; provided, as if it were an original Selling Stockholder hereunder. Such transferred Selling Stockholder Shares further, that such transferor shall remain “Selling Stockholder Shares” hereunder, and liable for any breach by such transferee shall be treated as the “Selling Stockholders” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 shall not apply to the sale Permitted Transferee of any Selling Stockholder Shares to the public pursuant to a registration statement filed with, and declared effective by, the Commission under the Securities Actprovision hereunder.
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above Lenders shall not apply to (i) any transfer without consideration Transfer or Transfers by the Inside Investors which, over the term of a calendar year, amount to no more than (a) 250,000 shares (as adjusted for any stock split, stock dividend, reverse stock split or other subdivision of the Company) of Co-Sale Stock held collectively by the Inside Investors or (b) 75,000 shares (as adjusted for any stock split, stock dividend, reverse stock split or other subdivision of the Company) of Co-Sale Stock held by any one Inside Investor, (ii) any sale by the Inside Investors of Co-Sale Stock through a broker on the open market to the Selling Stockholder’s public in an arms length transaction, (iii) any transfer by any Inside Investors to the ancestors, descendants descendants, nieces, nephews, siblings or spouse or to trusts trusts, family limited liability companies, family limited partnerships, or the like, of such Inside Investor for the benefit of such persons or the Selling Stockholdersuch Inside Investor, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iiiiv) any pledge of Selling Stockholder Shares Co-Sale Stock made pursuant to a bona fide loan transaction that creates a mere security interest, (ivv) any bona fide gift, gift or (vvi) a transfer upon the death of any transfer to an Affiliate of such Selling StockholderInside Investor; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (Aa) the Selling Stockholder Inside Investors shall inform the Investors Lenders of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Lenders with a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder hereunder. Such transferred Selling Stockholder Shares shall remain “Selling Stockholder Shares” hereunder, and such transferee shall be treated as Agreement in favor of the “Selling Stockholders” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
Lenders or (bvi) Notwithstanding the foregoing, the provisions of this Section 5 shall not apply to the sale of any Selling Stockholder Shares to the public pursuant to a registration statement filed with, and declared effective by, the Commission under the Securities Act.
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder Inside Investors pursuant to a stock restriction agreement or other agreement between the Company and the Selling StockholderInside Investors. Any Inside Investor shall notify the Lenders seven (7) days prior to a sale made pursuant to clause (ii) above. Except with respect to Co-Sale Stock transferred under clauses (i) and (ii) above (which Co-Sale Stock shall no longer be subject to the co-sale rights of the Lenders), such transferred Co-Sale Stock shall remain "Co-Sale Stock" hereunder, and such pledgee, transferee or donee shall be treated as an "Inside Investor" for purposes of this Agreement.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding the foregoing, the right rights of first refusal and the co-sale rights of the Company and/or Company, the Investors set forth in Section Investors, and the Series A Stockholders under Sections 3, 4 and 5 above shall not apply to (i) any transfer without consideration Transfer to the Selling Stockholder’s ancestors, descendants or spouse of the Common Stockholders or to trusts for the benefit of such persons or the Selling Stockholderpersons, (ii) any transfer Transfer or transfers Transfers by a Selling Common Stockholder to another Selling Common Stockholder (or to an individual employed by the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, Company at the time of such transfer (the Transfer"Employee"), employed by but only if the transferring Common Stockholder first offers the shares to all other Common Stockholders or acting Employees, as a consultant or director applicable, and each member of the Companyapplicable group is allowed to participate pro rata with the other members of that group, (iii) any pledge of Selling Stockholder Shares Stock made pursuant to a bona fide loan transaction that creates a mere security interest, ; (iv) any bona fide giftTransfer by a Common Stockholder or Preferred Stockholder which is a partnership, limited liability company or corporation to the partners, members or stockholders of such entity without the payment of consideration therefor, or (v) any transfer to an Affiliate of such Selling Stockholderbona fide gift; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and ), or (v), (A) the Selling Stockholder transferor shall inform the Company and the Investors of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Company and the Investors with a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder hereunder. Such transferred Selling Stockholder Shares Stock shall remain “Selling Stockholder Shares” "Stock" hereunder, and such pledgee, transferee or donee shall be treated as a "Common Stockholder" (to the “Selling Stockholders” extent such transfer was from a Common Stockholder) for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section Sections 3, 4, and 5 shall not apply to the sale of any Selling Stockholder Shares Stock to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act").
(c) This Agreement is subject to, and shall in no manner limit the limit, any other right which that the Company may have to repurchase securities from the Selling Stockholder Common Stockholders pursuant to a stock restriction agreement or other agreement between the Company and the Selling StockholderCommon Stockholders.
Appears in 1 contract
Samples: Right of First Refusal and Co Sale Agreement (Gp Strategies Corp)
Exempt Transfers. (a) 3.1 Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 2 above shall not apply to (i) any transfer without consideration to (i) the Selling StockholderKey Employee’s ancestorsspouse, descendants children, parents or spouse siblings (collectively, “Family Members”), (ii) any trust or to trusts for estate planning purposes solely for the benefit of such persons Key Employee and/or Family Member(s) and of which such Key Employee and/or any such Family Member(s) is the trustee or are the Selling Stockholdertrustees, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, and (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction partnership, corporation or limited liability company that creates a mere security interestis wholly owned and controlled by such Key Employee and/or any such Family Member(s), (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (A) the Selling Stockholder Key Employee shall inform the Investors of such transfer prior to effecting it and (B) the transferee shall enter into a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder Key Employee hereunder, including without limitation Section 2. Such transferred Selling Stockholder Shares Key Employee Stock shall remain “Selling Stockholder SharesKey Employee Stock” hereunder, and such transferee shall be treated as the “Selling StockholdersKey Employee” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) 3.2 Notwithstanding the foregoing, the provisions of this Section 5 2 shall not apply to the sale of any Selling Stockholder Shares Key Employee Stock to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”).
(c) 3.3 This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder Key Employee pursuant to (i) a stock restriction agreement or other agreement between the Company and the Selling StockholderKey Employee and (ii) any right of first refusal set forth in any agreement between the Company and the Key Employees regarding the repurchase of Common Stock of the Company.
Appears in 1 contract
Samples: Series D Preferred Stock Purchase Agreement (Amyris, Inc.)
Exempt Transfers. (a) Notwithstanding the foregoing, the right rights of first refusal and co-sale rights of the Company and/or and the Investors set forth in Section 5 above shall not apply to (i) any transfer without consideration or transfers by a Founder which in the aggregate, over the term of this Agreement, amount to no more than five percent (5%) of the shares of Co-Sale Stock held by the Founder as of June 6, 2002 (as adjusted for stock splits, dividends and the like), (ii) any transfer to the Selling Stockholder’s ancestors, descendants or spouse or to trusts for the benefit of such persons or the Selling StockholderFounder, (iiiii) any transfer or transfers by a Selling Stockholder Founder to another Selling Stockholder Founder (the “Transferee-Selling StockholderFounder”) so long as the Transferee-Selling Stockholder Founder is, at the time of the Transfertransfer, employed by or acting as a consultant consultant, officer or director of the Company, (iiiiv) any pledge of Selling Stockholder Shares Co-Sale Stock made pursuant to a bona fide loan transaction with a financial institution that creates a mere security interest, or (ivv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (A) the Selling Stockholder Founder shall inform the Company and the Investors of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Company and the Investors with a written agreement to be bound by and comply with all provisions of this Agreement. Except with respect to Co-Sale Stock transferred under clause (i) above (which Co-Sale Stock shall no longer be subject to the rights of first refusal and co-sale rights of the Company and the Investors), as if it were an original Selling Stockholder hereunder. Such such transferred Selling Stockholder Shares Co-Sale Stock shall remain “Selling Stockholder SharesCo-Sale Stock” hereunder, and such pledgee, transferee or donee shall be treated as the a “Selling StockholdersFounder” for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the The provisions of this Section 5 2 hereof shall not apply to the sale of any Selling Stockholder Shares Co-Sale Stock to the Company or to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”).
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder Founder pursuant to (i) a stock restriction agreement or other agreement between the Company and the Selling StockholderFounder and (ii) any right of first refusal set forth in the Bylaws of the Company.
Appears in 1 contract
Samples: Right of First Refusal and Co Sale Agreement (AtriCure, Inc.)
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above Stockholder shall not apply to (i) any transfer without consideration or transfers by the Founder which in the aggregate, over the term of this Agreement, amount to no more than fifteen percent (15%) of the Co-Sale Stock held by the Founder as of the date hereof, (ii) any pledge of Co-Sale Stock made pursuant to a bona fide loan transaction with a financial institution that creates a mere security interest to the Selling Stockholder’s extent permitted under the Amended and Restated Guaranty Agreement, (iii) any transfer to the ancestors, descendants or spouse or to trusts for the benefit of such persons or the Selling StockholderFounder, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii3(a)(ii), (iii), (iv) and (viv), (A) the Selling Stockholder Founder shall inform the Investors Stockholder of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish the Stockholder with a written agreement to be bound by and comply with all provisions of this AgreementSection 2. Except with respect to Co-Sale Stock transferred under clause (i) above (which Co-Sale Stock shall no longer by subject to the co-sale rights of the Stockholder), as if it were an original Selling Stockholder hereunder. Such such transferred Selling Stockholder Shares Co- Sale Stock shall remain “Selling Stockholder Shares” "Co-Sale Stock" CO-SALE AGREEMENT hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” "Founder" for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 2 shall not apply to the sale of any Selling Stockholder Shares Co-Sale Stock to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act").
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding the foregoing, the right provisions of first refusal Sections 3 and co-sale rights of the Company and/or the Investors set forth in Section 5 above 4 shall not apply to to:
(i) any sale, transfer without consideration or gift of Shares to the Selling Stockholder’s Holders’ ancestors, descendants or spouse spouse, or to trusts or family limited partnerships for the benefit of such persons or the Selling StockholderHolders for estate or gift tax planning purposes, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to an Affiliate of such Selling Stockholder; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (A) the Selling Stockholder shall inform the Investors of such transfer prior to effecting it and (B) the transferee shall enter or donee enters into a written agreement to be bound by by, and comply with with, all provisions of this Agreement, Agreement as if it such transferee or donee were an original a “Selling Stockholder Holder” hereunder. Such transferred Selling Stockholder Shares shall remain “Selling Stockholder Shares” hereunder, and such transferee or donee shall be treated as the a “Selling StockholdersHolder” for all purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.;
(bii) Notwithstanding the foregoing, the provisions of this Section 5 shall not apply any transfer by a Selling investor who is an investment fund to such Selling Holders’ investment fund affiliates;
(iii) the sale or transfer of any Selling Stockholder Shares (A) to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”); (B) pursuant to a transaction to which Section 3(c)(i) of Article 4 of the Company’s Fourth Amended and Restated Certificate of Incorporation applies; or (C) to the Company; and
(iv) any pledge of the Shares pursuant to a bona fide loan transaction that creates a mere security interest, provided the pledgee enters into a written agreement to be bound by, and comply with, all provisions of this Agreement.
(cb) This Agreement is subject toNotwithstanding the foregoing, and the provisions of Section 4 shall not apply to one or more sales or transfers of any Shares by a Selling Holder to any person or entity, whether in no manner limit a single transaction or a series of related transactions, provided that the right which the Company may have to repurchase securities from total cumulative number of Shares so sold or transferred by the Selling Stockholder pursuant to a Holder does not exceed five percent (5%) of the number of Shares owned by such Selling Holder, calculated on an as-converted basis as of the date of this Agreement (as adjusted for stock restriction agreement or other agreement between the Company splits, stock dividends, recapitalizations and the Selling Stockholderlike).
Appears in 1 contract
Samples: Series C Preferred Stock Purchase Agreement (Trans1 Inc)
Exempt Transfers. (a) Notwithstanding the foregoing, the right provisions of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above 2 shall not apply to (i) any transfer without consideration to the Selling Stockholder’s ancestors, descendants or spouse or to trusts for the benefit of such persons a Transferring Stockholder; or the Selling Stockholder, (ii) any transfer or transfers by a Selling Stockholder to another Selling Stockholder (the “Transferee-Selling Stockholder”) so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of the Company, (iii) any pledge of Selling Stockholder Shares made pursuant to a bona fide loan transaction that creates a mere security interest, (iv) any bona fide gift, or (v) any transfer to gift by an Affiliate of such Selling StockholderInvestor; provided that in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (v), (A) the Selling Transferring Stockholder shall inform the Investors of such transfer or gift prior to effecting it and (B) the transferee or donee shall enter into furnish the Investors with a written agreement to be bound by and comply with all provisions of this Agreement, as if it were an original Selling Stockholder hereunderthe Investors' Rights Agreement and the Stock Purchase Agreement. Such transferred Selling Stockholder Co-Sale Shares shall remain “Selling Stockholder "Co-Sale Shares” hereunder, " hereunder and such transferee or donee shall be treated as a "Transferring Stockholder" and as an "Investor". In addition, notwithstanding the “Selling Stockholders” foregoing, the provisions of Section 2.2 shall not apply to any transfers from an Investor to a partner, active or retired of an Investor, the estate of any such partner or a parent or subsidiary corporation of an Investor, or a corporation which has the same parent corporation as an Investor provided that such Investor notifies the other Stockholders prior to effecting the transfer and the transferee shall furnish the Stockholders with a written agreement to be bound by and comply with all provisions of this Agreement, the Investors' Rights Agreement and the Stock Purchase Agreement. Such transferred shares shall remain "Co-Sale Shares" hereunder and such transferee (a "Permitted Transferee") shall be treated as an additional "Transferring Stockholder" for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of Section 2 of this Section 5 Agreement shall not apply to the sale of any Selling Stockholder Co-Sale Shares (i) to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act.
") or (cii) This Agreement is subject to, and shall in no manner limit the right which to the Company may have to repurchase securities from on termination of the Selling employment of a Transferring Stockholder pursuant to a stock restriction agreement or other the terms of any agreement between that Transferring Stockholder and the Company and or as otherwise approved by the Selling StockholderBoard of Directors of the Company.
Appears in 1 contract
Exempt Transfers. (a) Notwithstanding the foregoing, the right of first refusal and co-sale rights of the Company and/or the Investors set forth in Section 5 above TCW shall not apply to (i) any pledge of Co-Sale Stock made pursuant to a bona fide loan transaction with a financial institution that creates a mere security interest, (ii) any transfer without consideration to the Selling Stockholder’s ancestors, descendants or spouse of Peak or to trusts for the benefit of such persons or the Selling Stockholderpersons, (iiiii) any transfer or transfers by a Selling Stockholder Peak to another Selling Stockholder (the “Transferee-Selling Stockholder”) Xxxx Xxxxxxx so long as the Transferee-Selling Stockholder is, at the time of the Transfer, employed by or acting as a consultant or director of such transfer is made in connection with Jurrius' appointment to the Company's Board of Directors, (iii) any pledge of Selling Stockholder Shares made pursuant not to a bona fide loan transaction that creates a mere security interestexceed 1,000,000 shares, or (iv) any bona fide gift, or (v) any transfer to an Affiliate gift of such Selling Stockholdernot more than Peak's holdings of the Company's securities on the date hereof; provided that PROVIDED THAT in the event of any transfer made pursuant to one of the exemptions provided by clauses (i), (ii), (iii), (iv) and (viv), (A) the Selling Stockholder Peak shall inform the Investors TCW of such pledge, transfer or gift prior to effecting it and (B) the pledgee, transferee or donee shall enter into furnish TCW with a written agreement to be bound by and comply with all provisions of this AgreementSection 2. Except with respect to Co-Sale Stock transferred under clause (iii) above (which Co-Sale Stock shall no longer be subject to the co-sale rights of TCW), as if it were an original Selling Stockholder hereunder. Such such transferred Selling Stockholder Shares Co-Sale Stock shall remain “Selling Stockholder Shares” "Co-Sale Stock" hereunder, and such pledgee, transferee or donee shall be treated as the “Selling Stockholders” similarly with Peak for purposes of this Agreement, except that such transferee may not transfer shares pursuant to Section 4.4 hereof.
(b) Notwithstanding the foregoing, the provisions of this Section 5 2 shall not apply to the sale of any Selling Stockholder Shares Co-Sale Stock to (i) the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act") or (ii) the Company.
(c) This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Selling Stockholder pursuant to a stock restriction agreement or other agreement between the Company and the Selling Stockholder.
Appears in 1 contract
Samples: Co Sale Agreement (TCW Group Inc)
