Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering. (b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering. (c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation). (d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable. (e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act. (f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata. (g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 4 contracts
Samples: Limited Liability Company Agreement (Jpmorgan Chase & Co), Limited Liability Company Agreement (HG Vora Capital Management, LLC), Limited Liability Company Agreement (Hudson Bay Capital Management LP)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, contrary contained herein but subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation4.01(d).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory approved in accordance with this Agreement, the Members hereby agree to such Member that all officers and directors discuss in good faith whether any of the rights and obligations of the parties hereto and the Company and all holdersunder this Agreement should be amended, collectively with their Affiliates and Approved Fundsrestructured or terminated, including, without limitation, whether any of one percent (1%the rights set forth in Section 4.01(d) or greater 8.04 hereof should be terminated or made subject to any time limitations (or time and volume limitations in the case of Equity Securities of the Company shall enter into similar agreementsSection 5.04 hereof), thereby agreeing not in order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with permit the Initial Public OfferingOffering to be effected in a manner consistent with applicable Law, market custom and the recommendations of the Global Coordinators in light of market conditions at such time and the listing requirements of the exchange or market on which the Initial Public Offering is to be effected, taking into account, among other things, the rights of the Preferred Members hereunder and their goal and expectation that the Preferred Payment be effected as such managing underwriter promptly as practicable after the date hereof; provided, however, that this sentence shall specify reasonably and not in good faith. Each Member shall enter into customary letter agreements to any way either (x) obligate any of the foregoing effect if so, requested by Members or the Company and to agree to any amendment, restructuring or termination of any such rights or (y) affect or nullify any rights or obligations of the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by Members or the Company and the managing underwriter, if any, from the restrictions contemplated by under this Section 3.8(f), all other Members shall be released from such restrictions pro-rataAgreement.
(gb) Notwithstanding anything to the contrary set forth contained herein but subject to Section 4.01(d), in connection with any Initial Public Offering of the Company (or its successor corporation) or any newly formed corporation as described below, approved in accordance with this Agreement, and upon the restrictions contained request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Entity subject to such Public Offering, take such action and execute such documents as may reasonably be necessary to effect such Public Offering as expeditiously as possible, including, without limitation, taking all such actions and executing such documents as may reasonably be necessary to convert the Company into a corporation or to contribute its respective Securities to a newly formed corporation, in this Agreement each case substantially concurrently with the closing of such Public Offering; provided, however, that in connection with any such conversion or contribution (i) each Preferred Member shall not apply be entitled to Units, any other Equity Securities receive preferred stock of the corporation whose shares of common stock are being sold in connection with such Public Offering with the same economic rights as such Preferred Member was entitled to prior to such conversion or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontribution, including acquired by any of their respective Affiliates or Approved Fundswith an aggregate liquidation preference equal to the amount such Preferred Member would be entitled to receive, following the effective date in respect of the first registration statement Preferred Units which such Preferred Member held in the Company immediately prior to such conversion or contribution, under Section 5.02 hereof if a liquidation of the Company covering common stock (or other securities) had occurred immediately prior to be sold on behalf the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in an underwritten public offering.good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such
Appears in 4 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement, Limited Liability Company Agreement
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, contrary contained herein but subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation4.01(d).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory approved in accordance with this Agreement, the Members hereby agree to such Member that all officers and directors discuss in good faith whether any of the rights and obligations of the parties hereto and the Company and all holdersunder this Agreement should be amended, collectively with their Affiliates and Approved Fundsrestructured or terminated, including, without limitation, whether any of one percent (1%the rights set forth in Section 4.01(d) or greater of Equity Securities of the Company shall enter into similar agreements8.04 hereof should be terminated or made subject to any time limitations, thereby agreeing not in order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with permit the Initial Public OfferingOffering to be effected in a manner consistent with applicable Law, market custom and the recommendations of the Global Coordinators in light of market conditions at such time and the listing requirements of the exchange or market on which the Initial Public Offering is to be effected, taking into account, among other things, the rights of the Preferred Members hereunder and their goal and expectation that the Senior Preferred Redemption and the Junior Preferred Payment be effected as such managing underwriter promptly as practicable after the date hereof; provided, however, that this sentence shall specify reasonably and not in good faith. Each Member shall enter into customary letter agreements to any way either (x) obligate any of the foregoing effect if so, requested by Members or the Company and to agree to any amendment, restructuring or termination of any such rights or (y) affect or nullify any rights or obligations of the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by Members or the Company and the managing underwriter, if any, from the restrictions contemplated by under this Section 3.8(f), all other Members shall be released from such restrictions pro-rataAgreement.
(gb) Notwithstanding anything to the contrary set forth contained herein but subject to Section 4.01(d), in connection with any Initial Public Offering of the Company (or its successor corporation) or any newly formed corporation as described below, approved in accordance with this Agreement, and upon the restrictions contained request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Entity subject to such Public Offering, take such action and execute such documents as may reasonably be necessary to effect such Public Offering as expeditiously as possible, including, without limitation, taking all such actions and executing such documents as may reasonably be necessary to convert the Company into a corporation or to contribute its respective Securities to a newly formed corporation, in this Agreement each case substantially concurrently with the closing of such Public Offering; provided, however, that in connection with any such conversion or contribution (i) each Preferred Member shall not apply be entitled to Units, any other Equity Securities receive preferred stock of the corporation whose shares of common stock are being sold in connection with such Public Offering with the same economic rights as such Preferred Member was entitled to prior to such conversion or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontribution, including acquired by any of their respective Affiliates or Approved Fundswith an aggregate liquidation preference equal to the amount such Preferred Member would be entitled to receive, following the effective date in respect of the first registration statement Preferred Units which such Preferred Member held in the Company immediately prior to such conversion or contribution, under Section 5.03 hereof if a liquidation of the Company covering common stock (or other securities) had occurred immediately prior to be sold on behalf the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; (ii) the Common Members shall be entitled to receive that value of common stock of the corporation whose shares of common stock are being sold in connection with such Public Offering as equals the amount such Common Member would be entitled to receive, relative to the Common Units which such Member held in the Company immediately prior to such conversion or contribution, under Section 5.03 hereof if a liquidation of the Company had occurred immediately prior to the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; and (iii) each of the parties hereto and the Entity whose Securities will be the subject of such Initial Public Offering shall enter into, as a condition thereto, a shareholders agreement on substantially the same terms and conditions, mutatis mutandis, as set forth herein; provided further that, in connection with any such conversion or contribution, at any time and from time to time following the expiration of any lock-up period for an underwritten public offering.Initial Public Offering agreed to between the Preferred Members and the underwriters of any Initial Public Offering (but
Appears in 4 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement, Limited Liability Company Agreement
Initial Public Offering. Notwithstanding anything to the contrary contained herein, (ai) In the event that at any time after the date hereof, the Board of Directors determines that Managers deems it shall facilitate an offering of Equity Securities advisable and in the Company or a successor through an Initial Public Offering, then the Board best interests of Directors shall have the power to cause the Company to that the Company be reorganized as converted into a corporation pursuant to the Plan of Conversion in substantially the same form attached hereto as Exhibit B (such corporation or other issuer entity being hereinafter referred to as a the “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionPlan”), the Certificate of Incorporation attached as an exhibit to the Plan and the Members shall use their commercially reasonable efforts to effectuate such Certificate of Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having substantially the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in form attached hereto as Exhibit C (the case “Certificate of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tackConversion”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and in accordance with the Act, and (ii) the Members hereby consent to such conversion of the Company into a corporation in connection with any Initial Public Offering and in accordance with the Act and the Plan and authorize, approve and adopt the Plan, the Certificate of Incorporation attached as an exhibit to the Plan and the Certificate of Conversion. Notwithstanding anything to the contrary contained herein, in connection with any Initial Public Offering, and upon confirmation the request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Company, take such action and execute such documents as may reasonably satisfactory be necessary to effect such Initial Public Offering. Either in connection with an Initial Public Offering or prior to the expiration of the later of (i) 180 days following the consummation of the Initial Public Offering or (ii) the expiration of any underwriter lock-up period, the Board of Managers will liquidate the Company and distribute to the Members shares of common stock of the corporate successor of the Company which effects the Initial Public Offering; provided that (a) fifty percent (50%) of the shares of common stock held by each Member shall become eligible for sale by such Member on the date that is 180 days following the expiration of any underwriter lock-up period applicable to such Member and the remaining fifty percent (50%) of such Member’s shares shall become eligible for sale by such Member on the date that all officers is 271 days following the expiration of such underwriter lock-up period and directors (b) the Members have entered into an agreement acceptable to the Company not to sell such shares of common stock except as set forth in clause (a) above or pursuant to the exercise of registration rights (as set forth in Annex A). The number of shares of common stock of the corporate successor of the Company and all holders, collectively to be received by each Member shall be determined in accordance with their Affiliates and Approved Funds, of one percent (1%) Section 8.03 hereof. In connection with any such distribution or greater of Equity Securities of in the event that the Company shall enter is converted into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with a corporation that effects the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything entitled to the contrary registration rights set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringAnnex A hereto.
Appears in 4 contracts
Samples: Merger Agreement (STR Holdings (New) LLC), Merger Agreement (STR Holdings, Inc.), Limited Liability Company Agreement (STR Holdings (New) LLC)
Initial Public Offering. (a) In the event that at any time after the date hereofUpon a determination to effect an Initial Public Offering pursuant to Section 5.1(a)(iii), the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete structure the Initial Public Offering IPO in a manner designed reasonably acceptable to achieve a fair price and broad the Members, including, without limitation, causing the public distribution offering of the securities being offered stock of an existing or newly formed Subsidiary of the Company or any of the Transfers, mergers, consolidations or restructurings pursuant to Section 12.9(b) and making any such amendments to this Agreement (subject to Section 14.12) as may be deemed by the Board in the Initial Public Offeringgood faith solely as necessary to facilitate such IPO.
(b) If applicable, In the Members holding Units shall receive, in exchange for their Units event of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate determination by the Board (after compliance with Section 5.1(a)(iii)) to cause (i) a Transfer of Directors as a result all or substantially all of (x) the assets of the Conversion Company or if advisable in order (y) the Interests to effectuate a newly organized stock corporation or other business entity with the Initial Public Offering.
ownership interests therein allocated as specified herein (c“Newco”), (ii) In such event, the Public Vehicle and the Members (in their capacities as stockholders a merger of the Public VehicleCompany into Newco by merger or consolidation or (iii) shall enter into a stockholders’ agreement providing for any other restructuring of the Interests, in any such terms and conditions as are necessary for the rights and obligations and provisions case, whether in anticipation of this Agreement that survive an Initial Public Offering or otherwise, each Member shall take such reasonable steps to effect such Transfer, merger, consolidation or other restructuring as may reasonably be requested by the Company on terms that are substantially the same (and do not otherwise adversely affect the ability no less favorable) in respect of such Member’s Interests as other holders of corresponding Interests in respect of such corresponding Interests, including, without limitation, if requested, transferring such Member’s Interests to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the Newco in exchange for capital stock of Newco; provided, that in the Public Vehicleevent of such an exchange, including (i) an agreement to vote all each Interest would be exchanged for a number of shares of capital Newco stock held by determined in a manner such stockholders to elect that each Member is treated no less favorably than such Member would have been treated upon an Exit Event (assuming the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations value of the consideration to be received by the Members contained herein (which may, at in the election Exit Event is the midpoint of the holders of a Majority Class A Interest, be contained filing range in the Public Vehicle’s certificate IPO, to the extent such exchange is in anticipation of incorporationan IPO).
(d) Except as otherwise provided in this Section 3.8. Notwithstanding the preceding sentence, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members shall be required to give take any action or omit to take any action to the extent such action or omission violates applicable law. If the Board determines to effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted an IPO pursuant to this Section 3.8(d12.9(b) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold receive shares of capital stock of the Public Vehicle for purposes of the United States securities lawsNewco pursuant to any such Transfer, including Rule 144 under the Securities Act.
(f) Each merger, consolidation or restructuring, each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory agrees to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar (A) a Registration Rights Agreement and (B) any other customary agreements, thereby agreeing including, without limitation, an underwriters’ lock-up agreement for a period not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) exceed 360 days following the effective date consummation of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offeringsuch IPO, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to any event provides for the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), same lock-up period for all other Members shall be released from such restrictions pro-rataMembers.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (DMC Global Inc.), Limited Liability Company Agreement (DMC Global Inc.)
Initial Public Offering. The Members agree that upon the vote of ----------------------- at least seventy-five percent (75%) of the Members and, subject to compliance with applicable laws, the Company shall roll up to a "C" corporation (the "C" Corporation) in connection with an initial public offering of such "C" Corporation, which is (a) In pursuant to a firm underwriting commitment by a reputable investment banker, (b) has a pre-offering valuation of at least $150 million, and (c) results in the event that at any time after "C" Corporation's securities being listed on the date hereofAmerican Stock Exchange, the Board New York Stock Exchange or NASDAQ National Market System (herein an "Initial Public Offering"). Each of Directors determines that it shall facilitate an offering the Members hereby agrees to cooperate in connection with the contribution of Equity Securities their membership interests in the Company or to a successor through an such newly formed C-Corporation, with each existing Member to receive the common stock of the "C" Corporation in proportion to its capital account balance in the Company as of the date of the incorporation after revaluing such Member's capital account in accordance with Treasury Regulations and Section 11(b) to reflect the fair market value of the Company's assets as of the date of incorporation. As of the date of incorporation, the common stock held by all Members shall be granted standard piggyback registration rights entitling the Members to participate on a pari passu basis in registrations of the "C" Corporation's common stock under the Securities Act of 1933, as amended, other than the Initial Public Offering and subject to pro rata cut-backs at the underwriter's discretion. If Univision is a Class A Member and the Managing Members both consent to a proposed Initial Public Offering, then the Board of Directors shall have the power Univision agrees to cause the Company consent to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution if (i) three (3) years from the execution of this Agreement shall have expired; (ii) no more than five percent (5%) of the securities being offered shares to be sold in such offering may be purchased by a single Person, and (iii) no more than thirty percent (30%) of the Company will be sold in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 2 contracts
Samples: Subordinated Note Purchase and Option Agreement (Entravision Communications Corp), Roll Up Agreement (Entravision Communications Corp)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or Upon a successor through determination by Xxxxx to effect an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete structure the Initial Public Offering IPO in a manner designed acceptable to achieve a fair price and broad Xxxxx, including, without limitation, causing the public distribution offering of the securities being offered in stock of an existing or newly formed subsidiary of the Initial Public OfferingCompany or any of the Transfers, mergers, consolidations or restructurings pursuant to Section 13.11(b) and making any such amendments to this Agreement (subject to Section 15.11) as may be deemed by the Board to be necessary to facilitate such IPO.
(b) If applicableIn the event of a determination by Xxxxx to cause (i) a Transfer of all or substantially all of (x) the assets of the Company or (y) the Interests to a newly organized stock corporation or other business entity (“Newco”), (ii) a merger of the Members holding Units Company into Newco by merger or consolidation or (iii) any other restructuring of the Interests, in any such case in anticipation of an Initial Public Offering, each Member shall receivetake such steps to effect such Transfer, merger, consolidation or other restructuring as may be requested by the Company on terms that are substantially the same (and no less favorable) in respect of such Member's Interests as other holders of corresponding Interests in respect of such corresponding Interests, including, without limitation, if requested, Transferring such Member’s Interests to Newco in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of Newco, provided, that in the Public Vehicleevent of such an exchange, including (i) an agreement to vote all each Interest would be exchanged for a number of shares of capital Newco stock held by determined in a manner such stockholders to elect that each Member is treated no less favorably than such Member would have been treated upon an Exit Event (assuming the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations value of the Members contained herein consideration to be received by Xxxxx in the Exit Event is the mid-point of the filing range in the IPO); provided, however, in lieu of effecting any such exchange of the Common Units (which mayand/or, at the election option and request of Xxxxx, Override Units) of Management Members, the Company shall, at the request of Xxxxx, pay to the Management Members cash in an amount equal to the aggregate Fair Market Value of the holders of a Majority Class A Interestshares such Management Member would, be contained in otherwise, have received pursuant to the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8preceding proviso. Notwithstanding the preceding sentence, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members shall be required to give take any action or omit to take any action to the extent such action or omission violates applicable law. If the Board determines to effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted an IPO pursuant to this Section 3.8(d13.11(b) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Management Members hereby agree receive shares of Newco pursuant to use their commercially reasonable efforts any such Transfer, merger, consolidation or restructuring, each Management Member and Investor Member agrees to structure enter (as a “Management Shareholder” or a “Outside Investor”, respectively, as set forth therein) into a registration rights agreement on terms substantially comparable to the Conversion to maximize the ability terms of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities ActRegistration Rights Agreement.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Carbuyco, LLC), Limited Liability Company Agreement (Adesa California, LLC)
Initial Public Offering. (a) In the event that If at any time after the date hereof, the Board desires to cause (i) a transfer of Directors determines that it shall facilitate an offering all or a substantial portion of Equity Securities in (A) the assets of the Company or (B) the Units to a successor through newly organized corporation or other business entity (“Newco”), (ii) a merger or consolidation of the Company into or with a Newco as provided under Section 18-209 of the Delaware Act or otherwise or (iii) another restructuring of all or substantially all of the assets or Units of the Company into Newco, in any case in anticipation of or otherwise in connection with a registered initial public offering of securities of the Company, Newco or any of its Affiliates (an “Initial Public Offering”), each Member shall take such steps to effect such transfer, merger, consolidation, distribution or other restructuring as may be reasonably requested by the Board, including, without limitation, transferring or tendering such Member’s Units to Newco in exchange or consideration for shares of capital stock or other equity interests of Newco, determined in accordance with the valuation procedures set forth in Section 10.8(c). Such shares or other equity interests shall be subject to restrictions on, and have rights with respect to, Transfer that are substantially the same as those contained in this Agreement to the extent applicable.
(b) Notwithstanding the foregoing provisions of Section 10.8(a), an Initial Public Offering shall be structured in a reasonably tax efficient manner, taking into account the interests of the Members, as determined by the Board. Notwithstanding anything to the contrary herein, in the event a Member may incur any tax liability in connection with an Initial Public Offering, then the Board of Directors shall have the power will use reasonable best efforts to cause the Company underwriters to be reorganized agree to provide priority as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law sale of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete Member’s Units in connection with the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange extent necessary for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate offset such tax liability with proceeds from the Initial Public Offering.
(c) In such eventconnection with a transaction described in Sections 10.8(a) or (b), the Public Vehicle Board shall, in good faith, determine the Fair Market Value of the assets and/or Units transferred to or merged into Newco, the aggregate Fair Market Value of Newco and the Members (in their capacities as stockholders number of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders or other equity interests to elect be issued to each Member in exchange or consideration therefor; provided, that, the Board shall take into account the imposition of Directors an exercise price when considering the number of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority stock options to be issued to any Member holding Unvested Class A Interest, be contained in the Public Vehicle’s certificate of incorporation)B Common Units.
(d) Except as otherwise provided in this Section 3.8Each Member, no Member will have excluding the right or power to vetoCarmike Members, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company Company, with full power of substitution and resubstitution, its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.810.8, including any vote or approval required under Section 18-209 of the Delaware Act. The proxy granted pursuant to this Section 3.8(d10.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Carmike Cinemas Inc)
Initial Public Offering. Ladies and Gentlemen: This letter (athis “Letter Agreement”) In is being delivered to you in accordance with the event that at any time after Underwriting Agreement (the date hereof“Underwriting Agreement”) entered into by and among Minority Equality Opportunities Acquisition Inc., the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a Delaware corporation (such corporation or other issuer entity being hereinafter referred to as a the “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionCompany”), and Maxim Group LLC, as representative (the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution “Representative”) of the securities being offered in several underwriters (each, an “Underwriter” and collectively, the Initial “Underwriters”), relating to an underwritten initial public offering (the “Public Offering.
”), of 10,000,000 of the Company’s units (bincluding up to 1,500,000 units that may be purchased to cover over-allotments, if any) If applicable(the “Units”), each comprised of one share of the Members holding Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”), and one redeemable warrant. Each warrant (a “Warrant”) entitles the holder thereof to purchase one share of Common Stock at a price of $11.50 per share, subject to adjustment. The Units shall receive, in exchange for their Units of a particular class, shares of stock will be sold in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(da registration statement on Form S-1 (File No. 333-258241) is a special proxy coupled with an interest and is irrevocable.
prospectus (e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tackProspectus”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested filed by the Company with the U.S. Securities and a managing underwriter, if any, in connection with any Initial Public Offering Exchange Commission (the “Commission”) and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of has applied to have the Company shall enter into similar agreements, thereby agreeing not Units listed on The Nasdaq Capital Market. Certain capitalized terms used herein are defined in paragraph 11 hereof. In order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by induce the Company and the managing underwriterUnderwriters to enter into the Underwriting Agreement and to proceed with the Public Offering and for other good and valuable consideration, if any. Notwithstanding the foregoingreceipt and sufficiency of which are hereby acknowledged, in each of Minority Equality Opportunities Acquisition Sponsor, LLC (the event any Member “Sponsor”) and the undersigned individuals, each of whom is released by a member of the Company’s board of directors and/or management team (each, an “Insider” and collectively, the “Insiders”), xxxxxx agrees with the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.as follows:
Appears in 1 contract
Samples: Underwriting Agreement (Minority Equality Opportunities Acquisition Inc.)
Initial Public Offering. (a) In (i) During the event that at any time period beginning on the fourth (4th) anniversary of the date of this Agreement and ending on the seventh (7th) anniversary of the date of this Agreement, if the Named Executive Members and (ii) on and after the date hereofseventh (7th) anniversary of this Agreement, if the Board Sponsor Member(s), provide Station with written notice of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through their desire to pursue an Initial Public Offering, then each Equityholder shall support and do all things within its power to approve, and to cause the Board of Directors to approve, the Initial Public Offering. The Board of Directors and the officers of Station shall be responsible for all aspects of the Initial Public Offering. Upon the consummation of an Initial Public Offering, Sections 2.1, 3.5.1, 3.5.2 and 3.5.3 hereof shall no longer be applicable; provided, that if such Initial Public Offering is consummated by a Subsidiary of Station or successor thereof (including Newco) in accordance with this Agreement, [(i) the governance structure set forth in Article 2 hereof shall be applied to such Subisidiary,] (ii) a Class A Member shall have the power right, exercisable at any time and from time to cause time at such Member’s discretion, to exchange Class A Units of FCP or Xxxxxxxx Partners for shares of common stock of such Subsidiary or successor, and (iii) the Company to be reorganized as Board of Directors, including a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law Supermajority of the State Board of Delaware by incorporationDirectors, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”)if required, and the Members shall use their commercially reasonable efforts Equityholders hereby agree to effectuate such Conversion and take such actions other actions, including amendments to this Agreement, as are may be reasonably necessary or desirable to complete the required in connection with such Initial Public Offering in a manner designed to achieve a fair price give effect to the relative rights and broad public distribution obligations of the securities being offered Equityholders contained herein, which remain in the effect following an Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock The Equityholders acknowledge and agree that in the Public Vehicle event of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle Units of FCP and the Members (in their capacities as stockholders of the Public Vehicle) Xxxxxxxx Partners shall enter be converted into a stockholders’ agreement providing for such terms cash and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation Newco in accordance with the substance of Section 6.1, and (ii) the rights and obligations terms of the Members contained herein (which mayFCP Operating Agreement and the Xxxxxxxx Partners Operating Agreement. Further, at the election Equityholders acknowledge and agree that no public offering of the holders Units of a Majority Class A InterestFCP, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right Xxxxxxxx Partners or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members respective corporate successors shall be released from such restrictions pro-rataeffected.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In the event that If, at any time after following the date hereoffourth anniversary of the Effective Time, the Non-K/M Directors, in good faith and consistent with their fiduciary duties, unanimously resolve to pursue or commence registration for an Initial Public Offering for which the Board of Directors determines have received advice from a nationally recognized investment banking firm selected by the Non-K/M Directors and reasonably acceptable to the Board of Directors that it shall facilitate such Initial Public Offering is reasonably likely to be consummated within fifteen (15) months following such resolution of the Non-K/M Directors and to result in an offering price per share that would imply a net equity valuation of Equity Securities in the Company of at least $400,000,000, then the members of the Board of Directors designated by Kirin and Mitsui shall not object to the pursuit or commencement of such Initial Public Offering and the Designated Holders shall not unreasonably withhold any stockholder consent required to pursue or consummate such Initial Public Offering; provided, however, that, notwithstanding the foregoing, the foregoing commitment of the members of the Board of Directors designated by Kirin and Mitsui shall cease to apply and the Designated Holders shall have the right to withhold any consent with respect to such Initial Public Offering or revoke any consent previously granted if at any time before such Initial Public Offering has occurred, the managing underwriter indicates that such Initial Public Offering is not likely to result in an offering price per share that would imply a successor through an net equity valuation of the Company of at least $400,000,000 (such decrease in valuation, a “Downward Valuation Adjustment”). So long as no Downward Valuation Adjustment has occurred, the Designated Holders (i) shall not interfere with any steps reasonably undertaken by the Company with respect to such Initial Public Offering; (ii) shall, as may be necessary to facilitate the approval, authorization or recommendation of any such Initial Public Offering, then replace any members of the Board of Directors designated by Kirin and Mitsui who do not vote in favor of, authorize or recommend a proposal to pursue or commence such Initial Public Offering; and (iii) shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law vote their shares in favor of the State consummation of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably transactions necessary or desirable to complete the such Initial Public Offering in a manner designed and otherwise consent to achieve a fair price and broad public distribution raise no objection to the consummation of such transactions; provided that, notwithstanding the securities being offered in foregoing, neither Designated Holder nor any Affiliate thereof shall be required to terminate or otherwise amend or modify any commercial or other agreements that such Designated Holder or such Affiliate has entered into with the Company or any of its Affiliates, except to the extent necessary to remove prohibitions on, or to permit the authorization of, the consummation of such Initial Public OfferingOffering (it being understood and agreed that nothing herein will require the Designated Holders to terminate, amend or modify any rights granted pursuant to Section 2.6(b)). The Company shall keep the Designated Holders reasonably informed with respect to such Initial Public Offering (including, without limitation, the status, timing, pricing and other terms thereof) and shall deliver to the Designated Holders copies of all material documents (including drafts thereof and comments thereto) and correspondence to or from the managing underwriter and the SEC related to such Initial Public Offering (with such delivery to be at substantially the same time as when such documents and correspondence are distributed or received by the Company), including without limitation the prospectus, registration statement and drafts and xxxx-ups of definitive agreements.
(b) If applicable, The Company (i) shall promptly notify (the Members holding Units “IPO Notification”) the Designated Holders in writing if the conditions triggering an Initial Public Offering described in Section 2.6(a) have been satisfied and (ii) shall receive, promptly notify (the “Adjustment Notification”) the Designated Holders if any Downward Valuation Adjustment has occurred. The IPO Notification shall describe in exchange for their Units of a particular class, shares of stock in reasonable detail the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the material terms of their respective Units) in such Initial Public Offering, including the proposed Initial Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate Offering valuation (which shall have been reasonably determined by the Board of Directors as following consultation with a result nationally recognized investment banking firm), the name and address of the Conversion proposed managing underwriter, the expected offering date, and the proposed national securities exchange for such Initial Public Offering, and shall include a copy of all documents exchanged with the proposed managing underwriter. The Adjustment Notification shall describe in reasonable detail the reason for the Downward Valuation Adjustment and the revised terms and pricing of such Initial Public Offering. Following the delivery of any IPO Notification, the Designated Holders shall have one hundred twenty (120) days to elect and commit in writing to purchase all Securities not held by the Designated Holders at the proposed Initial Public Offering valuation. If the Designated Holders elect and commit in writing to purchase all such Securities, then each Stockholder shall be required to sell its Securities to the Designated Holders, and the Designated Holders shall be required to purchase such Securities, at a per Security purchase price (which, for the avoidance of doubt, shall be reduced by the exercise price payable with respect to any option, warrant or if advisable similar Security) based on the proposed Initial Public Offering valuation (in order case of a Downward Valuation Adjustment, such valuation shall be reduced as reflected in the Adjustment Notification) and pursuant to effectuate purchase and sale documents in customary form reasonably acceptable to the Designated Holders and at a closing date reasonably agreed by the Board of Directors and the Designated Holders. If the consummation of the Initial Public Offering.
(c) In such eventOffering provided for in the IPO Notification does not occur for any reason, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement Section 2.6(b) shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontinue, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement obligation of the Company covering common stock (or other securities) to be sold on behalf provide the IPO Notification and the right of the Company in an underwritten public offeringDesignated Holders to purchase all Securities not held by the Designated Holders at the proposed Initial Public Offering valuation. Following the delivery of any Adjustment Notification, the Designated Holders shall have ten (10) Business Days to revoke any prior stockholder consent to the extent such revocation is permitted pursuant to Section 2.6(a).
Appears in 1 contract
Initial Public Offering. (a) In The Company and the event Members acknowledge and agree that at any time after time, subject to the date hereofprovisions of Section 9.1.11, the Board may request (or any of Directors determines its Subsidiaries if approved by the Board), or the WP Member pursuant to Section 7.6 and 7.7 may require, that it shall facilitate an offering of Equity Securities in the Company or a successor through initiate an Initial Public Offering, then the Board of Directors shall have the power to cause the . The Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially be deemed to have approved any Initial Public Offering initiated in accordance with the prior sentence and the process related thereto, which Initial Public Offering shall be effected in accordance with this Section 10.6. Subject to Section 9.1.11, the Company and each of the Members shall take all reasonable efforts actions (i) to effectuate such Conversion cause the Issuer to file a registration statement on Form S-1 to effect an Initial Public Offering (or to consummate a similar initial public offering pursuant to a comparable process under applicable foreign securities laws) and take such actions as are reasonably necessary or desirable to complete (ii) in connection with the consummation of any Reorganization and the Initial Public Offering in as the Board so requests, including (x) the approval of a manner designed to achieve a fair price and broad public distribution merger or conversion of the securities being offered in Company or one or more of its Subsidiaries with and into a corporation or other entity, (y) the execution of applicable customary holdback and underwriting agreements, and (z) compliance with the requirements of all laws, exchanges and other regulatory and self-regulatory organizations that are applicable to, or have jurisdiction over, such Initial Public Offering.
(b) If applicableAny Initial Public Offering relating to the Company or its Subsidiaries may be effected at the Company level or at the level of a Subsidiary of the Company (the applicable entity, including any successor entity to the Company or any Subsidiary thereof, the “Issuer”). In connection with an Initial Public Offering approved in accordance with the terms of this Agreement, the Board may approve a reorganization of the Company or any of its Subsidiaries, whether involving a merger, contribution of equity securities, share exchange or otherwise (a “Reorganization”). Pursuant to such Reorganization, if so determined by the Board, the Members holding Units shall receive, receive common stock of the Issuer in exchange for their Units the Equity Securities of the Company then held by the Members. Notwithstanding anything to the contrary contained herein, in connection with an Initial Public Offering, the Board may cause the Company implement an “Up-C Structure” in which the business of the Company is continued to be conducted by the Company as a particular classlimited liability company with the Issuer being admitted as the manager or any similar structure, shares including by causing any direct or indirect holder of stock interests in the Public Vehicle Founder Member that is taxable as a corporation for U.S. federal income tax purposes to be the Issuer (the “Up-C Structure”). Any amount paid by the Issuer under a tax receivables or similar agreement in connection with the Up-C Structure shall be shared among the Members based on a pro rata utilization of the relevant class having tax benefits provided to the same relative Issuer by the Members. Notwithstanding the foregoing, at any time that the Board determines to effect a Reorganization or implement an Up-C Structure pursuant to this Section 10.6(b), each Member shall be entitled to exchange its Units for securities of the Issuer which reflect and are consistent with the terms of the Units as in effect immediately prior to such Reorganization or implementation of Up-C Structure with respect to seniority, preference, accumulated dividendseconomic interest, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent board rights, economic interest approval rights and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offeringobligations.
(c) In such event, Until immediately prior to the Public Vehicle and the Members (in their capacities as stockholders consummation of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders all of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein under this Agreement and in connection with any Reorganization shall be preserved (which mayeither by entering into a shareholders agreement with the Registered Entity, at the election of the holders of a Majority Class A Interestkeeping this Agreement in effect, be contained including corresponding provisions in the Public VehicleRegistered Entity’s certificate of incorporationincorporation or other organizational documents or otherwise). Following the Initial Public Offering, all of the rights of such Members under this Agreement and in connection with any Reorganization that do not terminate by their terms prior to or concurrent with consummation of the Initial Public Offering shall be preserved as nearly as practicable for a publicly traded company (by entering into a new shareholder agreement with the Registered Entity including corresponding provisions in the Registered Entity’s certificate of incorporation or other organizational documents or otherwise).
(d) Except as otherwise provided In connection with an Initial Public Offering, the Company or its successor entity (the “Registering Entity”) will enter into a registration rights agreement in this Section 3.8the form of Exhibit D attached hereto. The Members hereby agree that, during the period of duration (up to, but not exceeding, 180 days) specified by the Issuer and the underwriter of equity securities of the Issuer, following the date of the final prospectus (or comparable document under applicable foreign securities laws) distributed in connection with an Initial Public Offering, no Member will have shall, to the right extent requested by the Issuer and such underwriter, directly or power indirectly sell, offer to vetosell, vote contract to sell (including any short sale or other hedging transaction), pledge, grant any option to purchase or otherwise Transfer any equity securities held by such Member at any time during such period except for or against, amend, modify or delay a Conversion or such equity securities as shall be included in such registration. If requested by the Initial Public Offering. In furtherance of the foregoingunderwriter, each Member hereby makes, constitutes and appoints shall execute an agreement in the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect form provided by the underwriter containing terms which are essentially consistent with the provisions of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable10.6(d).
(e) The Company From and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for after one hundred eighty (180) days following such Initial Public Offering, WP Member shall be entitled to (i) make a demand registration at any time (but no more than twice in any calendar year) on Form S-1 (or a successor form) or other similar long-form registration statement, and (ii) customary piggyback registration rights on all demand registrations and the effective date of the relevant registration statement filed under the Securities Act in connection with Registering Entity registrations (including “shelf” registration, but excluding the Initial Public Offering), as such managing underwriter shall specify reasonably and in good faith. Each provided that, any block trade to be made by the WP Member shall enter into customary letter agreements not be subject to the foregoing effect if so, requested by the Company and the managing underwriter, if anyany piggyback registration rights of any other party. Notwithstanding the foregoing, in In the event any that the number of shares of securities requested to be included in a demand registration exceeds the number of shares of securities that can be sold in such offering, the WP Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from entitled to participate first over any other equityholders of the Registering Entity to be included in such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement registration and shall not apply be subject to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold pro rata cutbacks based on behalf of the Company in an underwritten public offeringownership percentage.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Calumet Specialty Products Partners, L.P.)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, contrary contained herein but subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation4.01(d).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory approved in accordance with this Agreement, the Members hereby agree to such Member that all officers and directors discuss in good faith whether any of the rights and obligations of the parties hereto and the Company and all holdersunder this Agreement should be amended, collectively with their Affiliates and Approved Fundsrestructured or terminated, including, without limitation, whether any of one percent (1%the rights set forth in Sections 4.01(d) or greater 8.04 hereof should be terminated or made subject to any time limitations (or time and volume limitations in the case of Equity Securities of the Company shall enter into similar agreementsSection 5.04 hereof), thereby agreeing not in order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with permit the Initial Public OfferingOffering to be effected in a manner consistent with applicable Law, market custom and the recommendations of the Global Coordinators in light of market conditions at such time and the listing requirements of the exchange or market on which the Initial Public Offering is to be effected, taking into account, among other things, the rights of the Preferred Members hereunder and their goal and expectation that the Preferred Payment be effected as such managing underwriter promptly as practicable after the date hereof; provided, however, that this sentence shall specify reasonably and not in good faith. Each Member shall enter into customary letter agreements to any way either (x) obligate any of the foregoing effect if so, requested by Members or the Company and to agree to any amendment, restructuring or termination of any such rights or (y) affect or nullify any rights or obligations of the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by Members or the Company and the managing underwriter, if any, from the restrictions contemplated by under this Section 3.8(f), all other Members shall be released from such restrictions pro-rataAgreement.
(gb) Notwithstanding anything to the contrary set forth contained herein but subject to Section 4.01(d), in connection with any Initial Public Offering of the Company (or its successor corporation) or any newly formed corporation as described below, approved in accordance with this Agreement, and upon the restrictions contained request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Entity subject to such Public Offering, take such action and execute such documents as may reasonably be necessary to effect such Public Offering as expeditiously as possible, including, without limitation, taking all such actions and executing such documents as may reasonably be necessary to convert the Company into a corporation or to contribute its respective Securities to a newly formed corporation, in this Agreement each case substantially concurrently with the closing of such Public Offering; provided, however, that in connection with any such conversion or contribution, (i) each Preferred Member shall not apply be entitled to Units, any other Equity Securities receive preferred stock of the corporation whose shares of common stock are being sold in connection with such Public Offering with the same economic rights as such Preferred Member was entitled to prior to such conversion or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontribution, including acquired by any of their respective Affiliates or Approved Fundswith an aggregate liquidation preference equal to the amount such Preferred Member would be entitled to receive, following the effective date in respect of the first registration statement Preferred Units which such Preferred Member held in the Company immediately prior to such conversion or contribution, under Section 5.02 hereof if a liquidation of the Company covering common stock (or other securities) had occurred immediately prior to be sold on behalf the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; (ii) the Common Members shall be entitled to receive that value of common stock of the corporation whose shares of common stock are being sold in connection with such Public Offering as equals the amount such Common Member would be entitled to receive, relative to the Common Units which such Member held in the Company immediately prior to such conversion or contribution, under Section 5.02 hereof if a liquidation of the Company had occurred immediately prior to the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; and (iii) each of the parties hereto and the Entity whose Securities will be the subject of such Initial Public Offering shall enter into, as a condition thereto, a shareholders agreement on substantially the same terms and conditions, mutatis mutandis, as set forth herein; provided further, that in connection with any such conversion or contribution, at any time and from time to time following the expiration of any lock-up period for an underwritten public offering.Initial Public Offering agreed between the Preferred Members and the underwriters of any Initial Public Offering (but in no event more than 180 days after the consummation thereof), (A) with respect to the FRBNY Member, for as long as the FRBNY Member owns any Preferred Units, the FRBNY Member shall, at any time (i) during the Initial Period, upon prior consultation with, and during the 12-
Appears in 1 contract
Samples: Purchase Agreement (American International Group Inc)
Initial Public Offering. (a) In If the event that Company at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an proposes its Initial Public Offering, then it will give notice to the Board Founders of Directors shall have its intention to do so. Upon the power written request of any Founder to register any of its Restricted Stock, the Company will use its best efforts to cause the Company Restricted Stock as to which registration shall have been so requested to be reorganized as a corporation (such corporation included in the securities to be covered by the registration statement proposed to be filed by the Company, all to the extent requisite to permit the sale or other issuer entity being hereinafter referred disposition by the Founder of such Restricted Stock so registered. The number of shares of Restricted Stock to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete be included in the Initial Public Offering in a manner designed may be reduced (pro rata among the requesting Founders based upon the number of shares of Restricted Stock owned by the Founders) if and to achieve a fair price and broad public distribution the extent that the managing underwriter shall be of the opinion that such inclusion would adversely affect the marketing of the securities being offered to be sold by the Company therein, provided, however, that such number of shares of Restricted Stock shall not be reduced if any shares are to be included in such underwriting for the Initial Public Offering.
(b) If applicableaccount of any person other than the Company or the Founders. For purposes of this Section 2.3 and Sections 2.4, 2.5, 2.6, 6.1 and 6.4, the Members holding Units term “Restricted Stock” shall receive, in exchange for their Units be deemed to include the number of a particular class, shares of stock in the Public Vehicle Restricted Stock which would be issuable to a holder of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case Preferred Shares upon conversion of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect Preferred Stock; provided, however, that the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (only securities which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreementsbe required to register pursuant hereto shall be shares of Common Stock; provided, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offeringfurther, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if sohowever, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoingthat, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions underwritten public offering contemplated by this Section 3.8(f)2.3 or Sections 2.4, all other Members 2.5 and 2.6, the holders of Preferred Shares shall be released from entitled to sell such restrictions pro-rata.
(g) Notwithstanding anything Preferred Shares to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable underwriters for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date conversion and sale of the first registration statement shares of the Company covering common stock (Common Stock issued upon conversion or other securities) to be sold on behalf of the Company in an underwritten public offeringexercise and conversion, as applicable, thereof.
Appears in 1 contract
Initial Public Offering. 12.1 After the Accreditation (and in any event not prior to the fifth (5th) anniversary of the Effective Date), and subject to the Shareholder Reserved Matters, the readiness of the Company and the suitability of market conditions, the Parties will in good faith discuss an initial public offering of the common shares of the Company (“IPO”) on the Saudi Arabian Main Market (Tadawul) or any other reputable stock exchange, whether through a primary or secondary offering of Shares.
12.2 In connection with any IPO, the common shares to be included in the offering shall consist of the following: (a) In first, all new (primary) common shares that the event Company wishes to be included in such offering; and (b) second, any additional common shares that at NV, PIC or any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities other shareholder wishes to include in the offering (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Shareholders in accordance with their Shareholding as compared to the total number of outstanding common Shares held by all such Shareholders immediately prior to the completion of the IPO).
12.3 Should the Parties mutually agree to pursue an IPO, each Shareholder agrees to use its reasonable endeavours to cooperate with the Company or a successor through an Initial Public Offering, then (and any IPO advisers retained by the Board of Directors shall have the power Company) to cause such IPO to occur, and each Shareholder and the Company agree to be reorganized as a corporation take all actions customarily required in connection with the consummation thereof, including by:
(such corporation or other issuer entity being hereinafter referred a) cooperating to as a “Public Vehicle”) under obtain the General Corporation Law approval of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts relevant regulators in relation to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.IPO;
(b) If applicableassisting with the appointment of appropriate advisers to the Company (provided that that engagement of any such advisers shall be on financial and other terms customary in the industry and all fees and expenses of such advisers shall be borne by the Company);
(c) assisting in the production, negotiation and execution of such documentation as is required to effect an IPO (including a prospectus and underwriting agreement);
(d) providing reasonable assistance to those advisers advising the Members holding Units shall receiveCompany or any Shareholder in relation to an IPO or potential IPO;
(e) approving any resolutions of the Shareholders as may be reasonably necessary in connection with an IPO, including resolutions to convert the legal form of the Company, increase the authorised share capital of the Company, confer on the Managers the authority to allot Shares, dis-apply any applicable statutory pre-emption rights, reclassify/reorganise the share capital of the Company, issue any new Shares or classes of Shares or other securities or adopt new constitutional documents (as the case may be), in exchange for their Units of a particular classeach case in form reasonably acceptable to such Shareholder;
(f) agreeing to such customary representations and warranties (subject to customary limitations) as are reasonably required in relation to the IPO, shares of stock such representations and warranties:
(i) in the Public Vehicle respect of the relevant class having Company, to cover such areas as the same relative seniorityCompany’s affairs, preferencebusiness, accumulated dividendsoperations or otherwise as reasonably required in connection with an IPO; and
(ii) in respect of each Shareholder, dividend rate, dividend accumulation to be limited to warranties in relation to such Shareholder’s title to sell its Shares free from any Encumbrance at completion of the IPO and compounding and, its capacity to sell such Shares;
(g) in the case of each Shareholder only:
(i) agreeing to such undertakings in relation to the Class A Unitsretention, disposal or manner of disposal (known as “lock-ups”) of its Shares or securities received as consideration for Shares in such IPO in accordance with then-current market practice and as are considered by the financial advisers (or the relevant competent regulator) necessary or desirable in connection with such IPO;
(ii) agreeing to exchange, convert or re-designate any Shares or other characteristics securities in the Company (including loan notes) into shares or other securities of the Class A Unitsequivalent rank in, voting, management and consent rights, economic interest and other bearing substantially similar rights and obligations (and in no event shall such interestwith respect to, rights any holding company or obligations subsidiary that is to be less favorable to such Member than the terms of their respective Units) listed in the Public Vehicle same proportion as are set forth the proportion exchanged, converted or re-designated by such Shareholder, if so required, including by agreeing to transfer their Shares to a holding company established for the purposes of effecting an IPO; in this Agreement applicable to each case as reasonably necessary and appropriate, taking into account the Units, subject to any modifications deemed appropriate by the Board of Directors as a result proposed form and structure of the Conversion or if advisable in order to effectuate the Initial Public OfferingIPO.
(c) In such event12.4 To the extent permitted by Applicable Law, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) Company shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary be responsible for the rights reasonable and obligations documented out-of-pocket fees, costs and provisions of this Agreement that survive an Initial Public Offering expenses (excluding underwriting discounts and do not otherwise adversely affect the ability to effectuate the Initial Public Offeringcommissions) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held incurred by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, Shareholder in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataIPO.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In the event that at At any time after the date hereofexpiration of the Standstill Period, provided that no Auction Bid Process shall have been initiated in the last twelve (12) months, (i) the Financial Investors, the Board of Directors determines that it shall facilitate Xxxxxx Parties, (iii) the Xxxxx Parties or (iv) the Gras Parties may propose to the other Shareholders to initiate an initial public offering of Equity Securities in the Company or a successor through on an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation Eligible Stock Exchange (such corporation or other issuer entity being hereinafter referred to as a an “Public VehicleIPO”) under as soon as reasonably practicable, subject to the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public OfferingQualified Requisite Consent.
(b) If applicable, The Supervisory Board shall appoint a first ranked investment bank for the Members holding Units purpose of carrying out such IPO as sponsoring bank / lead manager and shall receive, in exchange for their Units promptly notify the Direct Parties of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offeringits choice.
(c) In such eventThe Parties shall cooperate in good faith in order to complete the IPO as soon as reasonably practicable and shall procure that their nominees on the Supervisory Board approve any decisions as may be required by Law.
(d) The Supervisory Board shall, the Public Vehicle and the Members (in their capacities as stockholders after consultation of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for Executive Committee, determine with the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including sponsoring bank (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation definitive offering price for the Shares in accordance with the substance of Section 6.1, IPO and (ii) the rights number of new Shares to be issued by the Company (the “New Offered Shares”), if any, and obligations the number of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, existing Shares proposed to be contained included in the Public Vehicle’s certificate of incorporationIPO (the “Existing Offered Shares”).
(d) Except as otherwise provided , in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes accordance with applicable Laws and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocableregulations.
(e) The Company Supervisory Board shall notify each Direct Party of the number of New Offered Shares and the Members hereby agree number of Existing Offered Shares that may be sold pursuant to use their commercially reasonable efforts the IPO and the proposed offering price and each Direct Party shall have the right to structure sell pursuant to such IPO a number of Shares equal to the Conversion to maximize product of (i) the ability number of the Members to aggregate Existing Offered Shares and (or “tack”ii) the period during which they hold their Units together with fraction having as its numerator (x) the period during which they hold shares number of capital stock Shares held by such Direct Party on a Fully Diluted Basis (prior to any conversion of the Public Vehicle for purposes Subordinated Convertible Bonds) and as its denominator (y) the total number of Shares on a Fully Diluted Basis (prior to any conversion of the United States securities lawsSubordinated Convertible Bonds) prior to the issue of any New Offered Shares, including Rule 144 under subject to the Securities Actcustomary lock-up agreements that may be required by the sponsoring bank(s) and/or the Governmental Authority monitoring the chosen Eligible Stock Exchange.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, The Parties shall cooperate in connection with any Initial Public Offering and upon confirmation reasonably satisfactory good faith in order to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreementsany underwriting and offering agreements which are required or customary for an IPO, thereby agreeing and hereby acknowledge and agree that such agreements may include lock-up undertakings. It is specified that any undertakings under such agreements shall not to Transfer any Equity Securities of be more restrictive for the Company held by it Xxxxxx Parties than for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataFinancial Investors.
(g) Notwithstanding anything It is expressly agreed that it is the common intention of the Parties that the Company shall be the Group Company to be listed if the contrary set forth in this AgreementSupervisory Board decides to launch an IPO.
(h) To the extent possible pursuant to applicable Laws, the restrictions contained in this Agreement shall not apply Direct Parties undertake to Units, any other Equity Securities or any securities convertible take all Applicable Actions to merge the Xxxxx Parties into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringorder to allow the Xxxxx Shareholders to take part to the IPO as if they were the direct owners of Securities, provided that:
(i) none of the Xxxxx Parties is a Defaulting Party;
(ii) there are no significant liability on the balance sheet of any of the Xxxxx Parties;
(iii) the Xxxxx Shareholders make any reasonable representations and warranties as may be required by the Company with respect to the conduct of the business of the Xxxxx Parties (including the place of effective management of the Xxxxx Parties or the compliance by the Xxxxx Parties with their tax obligations);
(iv) the Xxxxx Parties undertake to indemnify the Company for any loss resulting from undisclosed liabilities of the Xxxxx Parties or from a breach or inaccuracy of the above mentioned representations and warranties and such obligation of indemnification shall be secured by cash collateral or a first demand guarantee issued by a first rank bank; and
(v) none of the Xxxxx Parties is involved in litigation proceedings with a Third Party or a Xxxxx Shareholders.
(i) All fees and expenses in relation to the IPO (whether achieved or not achieved) shall be borne by the Company to the fullest extent permitted by applicable Law.
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines The Company represents that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the will pursue its Initial Public Offering in good faith and in a manner designed lawful manner. The Company represents and promises that it will not represent to achieve a fair price and broad public distribution prospective purchasers that the involvement of the securities being offered in Physician Parties, through the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle sale of the relevant class having Clinics and through the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case involvement of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Physician Parties pursuant to the UnitsConsulting Agreement, subject to guarantees any modifications deemed appropriate by the Board particular level of Directors as a result of the Conversion profitability or if advisable in order to effectuate the Initial Public Offering.
(c) In such eventreturn on investment. The Company further represents that it will properly, the Public Vehicle effectively and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms lawfully comply with any and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect registration requirements of any vote or approval of Members required Governmental Authority necessary to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with pursue the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements including but not limited to the foregoing effect if soUnited States Securities and Exchange Commission and the Texas State Securities Board. The Company represents that it will make full disclosure of all risks associated with an investment in the Initial Public Offering and that it will not represent to prospective investors that the participation of the Physician Parties will or can be expected to reduce any of such risks. The provision of information by the Physician Parties for inclusion in the Form S-1 will not be deemed waivers of or defenses to any claim arising out of the breach of this representation. The Company further represents that it will retain the services of licensed and competent attorneys, requested certified public accountants or tax advisors, as necessary, to determine that the Initial Public Offering and Form S-1 are proper and lawful. The Company represents that it will use such services to review all statements, information, memoranda, books and records, account information, leases, bank statements, tax returns, contracts, agreements, corporate documents, licenses, matters, disclosures, representations, warranties and statements of the Physician Parties to determine whether any and all representations made in the Form S-1 are correct, legal and not misleading, whether through commission or omission. In particular, and without limitation, such experts retained by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if anyshall determine, from the restrictions contemplated organization of the new PA, from the materials provided by this Section 3.8(f)the Physician Parties and from the Company’s own investigation that the Transaction Documents do not violate any law, all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything rule, or regulation relating to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any corporate practice of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringmedicine.
Appears in 1 contract
Samples: Master Transaction Agreement (Basic Care Networks Inc)
Initial Public Offering. (ai) In During the event that at any time period beginning on the fourth (4th) anniversary of the date of this Agreement and ending on the seventh (7th) anniversary of the date of this Agreement, if the Named Executive Members and (ii) on and after the date hereofseventh (7th) anniversary of this Agreement, if the Board Sponsor Member provides Station with written notice of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through its desire to pursue an Initial Public Offering, then each Equityholder shall support and do all things within its power to approve, and to cause the Board of Directors to approve, the Initial Public Offering. The Board of Directors and the officers of Station shall be responsible for all aspects of the Initial Public Offering. Upon the consummation of an Initial Public Offering, Sections 2.1, 3.5.1, 3.5.2 and 3.5.3 hereof shall no longer be applicable; provided, that if such Initial Public Offering is consummated by a Subsidiary of Station or successor thereof (including Newco) in accordance with this Agreement, (i) the governance structure set forth in Article 2 hereof shall continue to be applicable to Station, (ii) a Class A Member shall have the power right, exercisable at any time and from time to cause time at such Member’s discretion, to exchange Class A Units of FCP or Xxxxxxxx Partners for shares of common stock of such Subsidiary or successor, and (iii) the Company to be reorganized as Board of Directors, including a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law Supermajority of the State Board of Delaware by incorporationDirectors, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”)if required, and the Members shall use their commercially reasonable efforts Equityholders hereby agree to effectuate such Conversion and take such actions other actions, including amendments to this Agreement, as are may be reasonably necessary or desirable to complete the required in connection with such Initial Public Offering in a manner designed to achieve a fair price give effect to the relative rights and broad public distribution obligations of the securities being offered Equityholders contained herein, which remain in the effect following an Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock The Equityholders acknowledge and agree that in the Public Vehicle event of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle Units of FCP and the Members (in their capacities as stockholders of the Public Vehicle) Xxxxxxxx Partners shall enter be converted into a stockholders’ agreement providing for such terms cash and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation Newco in accordance with the substance of Section 6.1, and (ii) the rights and obligations terms of the Members contained herein (which mayFCP Operating Agreement and the Xxxxxxxx Partners Operating Agreement. Further, at the election Equityholders acknowledge and agree that no public offering of the holders Units of a Majority Class A InterestFCP, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right Xxxxxxxx Partners or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members respective corporate successors shall be released from such restrictions pro-rataeffected.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. Notwithstanding any provision of this subparagraph (aC) In to the event that at any time after contrary, following the date hereof, earlier to occur of (1) the Board first closing of Directors determines that it shall facilitate an offering offer and sale of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law shares of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital common stock of the Public VehicleFox Family Worldwide (whether such shares are sold by Fox Family Worldwide, including (iexisting stockholders or both) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted cash pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree firmly underwritten public offering effected pursuant to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested a registration statement filed by the Company with the Securities and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed Exchange Commission under the Securities Act of 1933, as amended, (or such successor legislation as shall then be in connection effect), or (2) the date upon which the shares of common stock of Fox Family Worldwide are first authorized for quotation on the Nasdaq National Market, or listed on the New York Stock Exchange (either event, an "initial public offering"):
(A) the provisions of subparagraphs (viii) and (ix) shall terminate and be of no further force or effect;
(B) the provisions of any voting trust agreement entered into pursuant to subparagraph (iv) shall not prevent or restrict Employee's right to sell and transfer any of the Option Shares free and clear of the obligations therein set forth;
(C) the Option shall terminate and expire, to the extent not theretofore exercised, (x) if Employee's employment with the Initial Public OfferingCompany is terminated for any reason other than for "cause" pursuant to Paragraphs 8(a), as (b) or (d) hereof, on the first anniversary of the date of such managing underwriter termination, and (y) if Employee's employment with the Company is terminated for "cause" pursuant to Paragraph 8(c) hereof, on the thirtieth (30th) day following the date of such termination; and
(D) after Employee's employment with the Company is terminated for any reason, Fox Family Worldwide shall specify reasonably have the right and in good faith. Each Member shall enter into customary letter agreements option, exercisable at any time prior to the foregoing effect date of expiration of the Option by delivery of written notice of such exercise to Employee, to purchase from Employee, and if sosuch option is exercised, requested Employee shall sell to Fox Family Worldwide, any and all Option Shares owned by Employee on the date of receipt of the notice of exercise (or acquired thereafter upon exercise of the Option and prior to the closing of such purchase) and the Option granted to Employee hereunder for an amount (the "IPO Termination Purchase Price") equal to (a) the fair market value per share of the Class B Common Stock of Fox Family Worldwide, multiplied by the Company number of Option Shares owned by Employee plus the fair market value per share of the Class B Common Stock of Fox Family Worldwide, multiplied by the number of Option Shares with respect to which Employee's Option has not been exercised, less (B) Employee's purchase price, determined under subparagraph (i) above, for the Option Shares with respect to which Employee's Option has not been exercised; for purposes of this subparagraph, IPO Termination Purchase Price shall equal the greater of (x) the average of the closing sale prices of Fox Family Worldwide's common stock over the 180 trading days preceding the date of giving of written notice and (y) the managing underwriteraverage of the closing sale prices of Fox Family Worldwide's common stock over the five trading days preceding the date of giving of written notice; and within ten (10) days after the determination of the fair market value of the Option Shares, if any. Notwithstanding Fox Family Worldwide shall pay the foregoingIPO Termination Purchase Price to Employee, against delivery by Employee to Fox Family Worldwide of an assignment separate from certificate for the Option Shares, in the event each case free and clear of any Member is released by the Company and the managing underwriterall liens, if anyclaims, from the encumbrances and restrictions contemplated by this Section 3.8(f)of any type, all other Members shall be released from such restrictions pro-ratakind or nature.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In As a material part of the event that at any time after consideration for Legacy entering into this Agreement, subject to the date hereofterms and conditions of this Article 11, Legacy shall have the Board of Directors determines that it shall facilitate an offering of Equity Securities in right and option to reorganize the Company as a "C" corporation, a Real Estate Investment Trust or other entity suitable for a successor through an public offering (the "Corporation") and in conjunction therewith, offer a significant portion of the initial issuance of the common stock of the Corporation for sale to the general public ("Initial Public Offering"). In connection with the foregoing, then the Board of Directors shall have the power Legacy may, at any time, exercise its rights with respect to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of shall determine the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably including, without limitation: (i) the timing for the Initial Public Offering, (ii) the valuation of the Corporation, (iii) the authorized number of shares of common stock of the Corporation constituting the Initial Authorized Issuance, (iv) the offering price of the individual shares of common stock of the Corporation, and in good faith. Each Member shall enter into customary letter agreements (v) other related terms and conditions with respect to the foregoing effect if so, requested by the Company and the managing underwriter, if anyInitial Public Offering. Notwithstanding the foregoing, in connection with Legacy's determination and approval of the event any Member is released terms and conditions of the Initial Public Offering, all of the Members acknowledge and agree that such terms and conditions will be based on a variety of factors, many of which are outside the control of the Company, the Managers and/or the Members. In connection with the foregoing, in making its determination as to the terms and conditions of the Initial Public Offering, Legacy hereby agrees that such terms and conditions shall be commercially reasonable and, in connection therewith, Legacy hereby agrees to and shall in good faith carefully consider and take into account the strategies, recommendations, and advice given to Legacy by all underwriters, legal counsel, accountants, financial advisors, and other professionals retained by Legacy in connection with such Initial Public Offering. In conjunction with the exercise by Legacy of the rights granted to Legacy pursuant to this Article 11, G II hereby agrees to execute all documents and undertake all steps necessary to complete the reorganization of the Company and to accomplish the Initial Public Offering in accordance with the terms and conditions of this Article 11. Legacy may exercise its election to proceed with the Initial Public Offering by delivering written notice to the Mangers and to G II of such election pursuant to this Section 11.1 ("Legacy's Notice"). Within thirty (30) calendar days following the date of Legacy's Notice, or as soon as commercially reasonable thereafter the Mangers and the Members shall complete the reorganization of the Company. In connection with the reorganization of the Company and the managing underwritersubsequent Initial Public Offering, if anysubject to the approval of Legacy, from the restrictions contemplated by this Section 3.8(f)Corporation shall authorize the number of shares of common stock of the Corporation to be issued with respect to: (i) the initial issuance of the shares of the common stock of the Corporation to be issued as part of the formation, all other Members reorganization and capitalization of the Corporation, which shares shall be released from such restrictions pro-rata.
(g) Notwithstanding anything issued to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement former Members of the Company covering pursuant to Section 11.2 hereof ("Initial Authorized Issuance"); and (ii) the subsequent issuance of the shares of the common stock (or other securities) to be sold on behalf of the Corporation required for, and subject to, the authorized plan for the Initial Public Offering established pursuant to this Section 11. Following the satisfaction of the terms and conditions of Section 11.2 hereof, the Company in an underwritten shall prepare and process the appropriate applications, registrations and other documents, agreements and instruments necessary to secure approval for the Initial Public Offering, and commence to offer such shares for sale to the general public offeringpursuant to the authorized plan for the Initial Public Offering.
Appears in 1 contract
Initial Public Offering. (a) In The Company, subject to market conditions, shall (i) cause the event that at IPO Registration Statement to be filed with the Commission substantially concurrently with the Exchange Offer Registration Statement (such date being the “IPO Filing Deadline”), (ii) make application to list the Class A Common Stock on the NASDAQ Global Market substantially concurrently with the filing of the IPO Registration Statement, (iii) use its commercially reasonable efforts to resolve any time after comments to the IPO Registration Statement from the Commission within 180 days of the date hereof, of the Board Consummation of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Private Offering, then the Board of Directors shall have the power (iv) use its commercially reasonable efforts to cause the Company IPO to be reorganized as a corporation Consummated not later than the 12-month anniversary of the date of the consummation of the Private Offering (such corporation or other issuer entity date being hereinafter referred to as a the “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionIPO Consummation Deadline”), and (v) in connection with the Members shall foregoing, use their its commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(bA) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable file all pre-effective amendments to such Member than the terms of their respective Units) in the Public Vehicle IPO Registration Statement as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable may be necessary in order to effectuate cause it to become effective, (B) file, if applicable, a post-effective amendment to such IPO Registration Statement pursuant to Rule 430A under the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, Act and (iiC) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwritercause all necessary filings, if any, in connection with any Initial Public Offering the registration and upon confirmation reasonably satisfactory to such Member that all officers and directors qualification of the Company and all holdersClass A Common Stock to be made under the blue sky laws of such jurisdictions as are necessary to permit Consummation of the IPO; provided, collectively with their Affiliates and Approved Fundshowever, of one percent (1%) or greater of Equity Securities of that the Company shall enter into similar agreements, thereby agreeing not be required to Transfer take any Equity Securities action that would subject it to general service of the Company held by process or taxation in any jurisdiction where it for one hundred eighty is not already so subject.
(180i) days following the effective date of the relevant registration statement filed under the Securities Act in In connection with the Initial Public OfferingOffering described in the foregoing paragraph 5(a), the Company shall give written notice to each holder (a “Piggyback Holder”) of Transfer Restricted Securities (or Exchange Securities received in exchange for such Transfer Restricted Securities in the Exchange Offer) of its intention to publicly file the IPO Registration Statement within twenty (20) Business Days of such public filing date, and such notice shall offer each Piggyback Holder the opportunity to register (a “Piggyback Registration”) on the same terms and conditions such number of shares of Class A Common Stock held by the Piggyback Holder as the Piggyback Holder may request. The Company shall include in such managing underwriter registration all shares of Class A Common Stock with respect to which the Company has received a written request for inclusion therein from the Piggyback Holders within ten (10) Business Days after such Piggyback Holder’s receipt of the Company’s notice, provided, however, that the number of shares of Class A Common Stock to be sold by Piggyback Holders (excluding any Initial Purchaser that is a Piggyback Holder) shall be limited to 50% of the total number of shares proposed to be sold pursuant to the IPO Registration Statement and subject to the limitations described below in Section 5(b)(ii). Such requests for inclusion shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements the number of shares of Class A Common Stock intended to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-ratadisposed of.
(gii) Notwithstanding anything to If the contrary set forth managing underwriter(s) of the Initial Public Offering advise the Company in this Agreementwriting that, in their judgment, the restrictions contained number of shares of Class A Common Stock requested by Piggyback Holders to be included in this Agreement the IPO Registration Statement are such that the success of the Initial Public Offering would be materially and adversely affected, the Company shall not apply include any securities the Company is so advised can be sold in such Piggyback Registration in the following order: (a) first, the shares of Class A Common Stock which the Company proposes to Unitssell; (b) second, on a pro rata basis the Class A Shares requested to be included in such registration by the Piggyback Holders (excluding any Initial Purchaser that is a Piggyback Holder), provided, that if the managing underwriters determine in good faith that a lower number of shares of Class A Common Stock should be included than those requested to be included by Piggyback Holders pursuant to paragraph (b)(i) above, then the Company shall be required to include in such registration only that lower number of shares of Class A Common Stock; and (c) third, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any shares of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) Class A Common Stock proposed to be sold on behalf of included in the Company in IPO Registration Statement (including any Class A Common Stock held by a Piggyback Holder that is an underwritten public offeringInitial Purchaser).
Appears in 1 contract
Samples: Registration Rights Agreement (Paragon Shipping Inc.)
Initial Public Offering. (a) In Notwithstanding anything to the event that contrary in this Agreement (including Sections 7.2 and 12.5) and subject solely to the satisfaction of the IPO Conditions (unless waived in whole or in part in writing by, with respect to the Class A IPO Condition, any member of the Class A Group holding Limited Partner Interests or by, with respect to the Class AQ IPO Condition, the Class AQ Group or by, with respect to the Class X IPO Condition, the Class X Group), the Initial Public Offering may be initiated and approved at any time after by the date hereof, General Partner without the Board consent of Directors determines that it shall facilitate an offering of Equity Securities in any other Partner. In connection with the Company or a successor through an Initial Public Offering, then (i) the Board of Directors Partners shall have amend and restate this Agreement in the power to cause form attached hereto as Exhibit B (the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionFourth A&R LPA”), and with such changes thereto as the Members General Partner shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably deem necessary or desirable appropriate in its sole discretion; (ii) the Units outstanding immediately prior to complete the Initial Public Offering shall be converted into an aggregate number of Common Units and Subordinated Units as the General Partner shall determine is appropriate (such aggregate number of Common Units and Subordinated Units, the “Total IPO Units”) with each Class A Preferred Unit, Class AQ Unit, Class X Unit and Class B Preferred Unit converting into such number of Common Units and/or Subordinated Units as is provided in a manner designed Sections 6.6(b), Section 6.6(c), Section 6.6(d) and Section 6.6(e), respectively, and (iii) the General Partner shall be authorized to achieve a fair price cause the Partnership to negotiate, prepare, execute and broad public distribution deliver such other agreements, documents and other instruments (including with any Affiliates of the securities being offered Partnership or any Partner), and take such other actions (including the issuance of any securities), as the General Partner shall deem necessary or appropriate in its sole discretion to effect the Initial Public Offering. GPM PETROLEUM LP THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
(b) In connection with the Initial Public Offering, each Class A Preferred Unit shall convert into a number of Common Units equal to “X” multiplied by “Y,” where “X” equals a fraction, the numerator of which is the total number of Class A Preferred Units outstanding immediately prior to such conversion and the denominator of which is the total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class A Preferred Units outstanding immediately prior to such conversion; provided, however, that if the value of the Common Unit(s) into which each outstanding Class A Preferred Unit would convert in accordance with the foregoing formula (based on the Initial Unit Price) is less than (the amount of such shortfall, the “IPO Shortfall”) the sum of (i) the Preferred Return of such Class A Preferred Unit as of the date of conversion plus (ii) the Cumulative Class A Preferred Unit Arrearage, if any, with respect to such Class A Preferred Unit as of the date of conversion plus (iii) the Current Distributions on such Class A Preferred Unit as of the date of conversion (collectively, the “Class A IPO Condition”), then the Class A Preferred Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class A IPO Condition to be satisfied (such Common Units into which the Class A Preferred Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class A IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the IPO Shortfall to be satisfied by the payment of cash to the holders of Class A Preferred Units.
(c) In connection with the Initial Public Offering, each Class AQ Unit shall convert into a number of Common Units equal to “X” multiplied by “Y,” where “X” equals a fraction, the numerator of which is the total number of Class AQ Units outstanding immediately prior to such conversion and the denominator of which is the total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class AQ Units outstanding immediately prior to such conversion; provided, however, that if the value of the Common Unit(s) into which each outstanding Class AQ Unit would convert in accordance with the foregoing formula (based on the Initial Unit Price) is less than (the amount of such shortfall, the “Class AQ IPO Shortfall”) the Class AQ Unit Purchase Price (the “Class AQ IPO Condition”), then the Class AQ Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class AQ IPO Condition to be satisfied (such Common Units into which the Class AQ Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class AQ IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the Class AQ IPO Shortfall to be satisfied by the payment of cash to the holders of Class AQ Units.
(d) In connection with the Initial Public Offering, each Class X Unit shall convert into a number of Common Units equal to “X” multiplied by “Y,” where “X” equals a fraction, the numerator of which is the total number of Class X Units outstanding immediately prior to such conversion and the denominator of which is the total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class X Units outstanding immediately prior to such conversion; provided, however, that if the GPM PETROLEUM LP THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP value of the Common Unit(s) into which each outstanding Class X Unit would convert in accordance with the foregoing formula (based on the Initial Unit Price) is less than (the amount of such shortfall, the “Class X IPO Shortfall”) the Class X Unit Purchase Price (the “Class X IPO Condition”), then the Class X Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class X IPO Condition to be satisfied (such Common Units into which the Class X Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class X IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the Class X IPO Shortfall to be satisfied by the payment of cash to the holders of Class X Units.
(e) In connection with the Initial Public Offering, each Class B Preferred Unit shall convert into a number of Units (as defined in the Fourth A&R LPA) equal to “X” divided by “Y,” where “X” equals the number of Total IPO Units less the number of Class A IPO Common Units less the number of Class AQ IPO Common Units less the number of Class X IPO Common Units and “Y” equals the total number of Class B Preferred Units outstanding immediately prior to such conversion (the “Class B IPO Units”). The General Partner shall be entitled, in its sole discretion, to determine the number of Class B IPO Units that shall be Common Units and the number of Class B IPO Units that shall be Subordinated Units.
(f) In connection with the Initial Public Offering, all of the Incentive Distribution Rights shall be issued to the General Partner as set forth in the Fourth A&R LPA.
(g) In connection with the Initial Public Offering approved in accordance with this Agreement, each Partner, upon the request of the lead underwriter(s), shall enter into a customary lock-up agreement at the time of the Initial Public Offering covering the Common Units, if any, to be received by such Partner pursuant to Section 6.6(a) for a lock-up period of no longer than 180 days.
(h) Each member of the Class A Group shall be required to sell up to 50% of its Common Units in the Initial Public Offering, as determined by the General Partner in its sole discretion; provided, that the Partnership will (a) pay all fees and expenses incurred by the Partnership in connection with the Initial Public Offering and (b) reimburse the members of the Class A Group for (i) the reasonable, documented out-of-pocket expenses incurred by members of the Class A Group in connection with the Initial Public Offering, including fees and expenses of attorneys, accountants and advisors retained by the Class A Group, up to a maximum, with respect to such expenses incurred by members of the Class A Group, of $50,000 and (ii) the Class A Group’s pro rata portion of all underwriting discounts and commissions received by the underwriters in the Initial Public Offering.
(bi) If applicableNotwithstanding anything in Sections 6.6(b), the Members holding Units shall receive6.6(c), in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights 6.6(d) or obligations be less favorable to such Member than the terms of their respective Units6.6(e) in the Public Vehicle as are set forth in this Agreement applicable to the Unitscontrary, subject if prior to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(cOffering the Partnership effects a Reclassification Event in a manner that is not applied consistently and on a pro rata basis to all classes of Partnership Interests outstanding at the time of such Reclassification Event, then the GPM PETROLEUM LP THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP formulas in Sections 6.6(b), 6.6(c), 6.6(d) In and 6.6(e) shall be adjusted to negate any dilutive effects of such event, Reclassification Event. Such an adjustment shall be made at the Public Vehicle and the Members (in their capacities as stockholders time of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to take into account all such Member Reclassification Events that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements have occurred prior to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-ratadate thereof.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or Upon a successor through determination by Xxxxx to effect an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete structure the Initial Public Offering IPO in a manner designed acceptable to achieve a fair price and broad Xxxxx, including, without limitation, causing the public distribution offering of the securities being offered in stock of an existing or newly formed subsidiary of the Initial Public OfferingCompany or any of the Transfers, mergers, consolidations or restructurings pursuant to Section 13.11 (b) and making any such amendments to this Agreement (subject to Section 15.11) as may be deemed by the Board to be necessary to facilitate such IPO.
(b) If applicableIn the event of a determination by Xxxxx to cause (i) a Transfer of all or substantially all of (x) the assets of the Company or (y) the Interests to a newly organized stock corporation or other business entity (“Newco”), (ii) a merger of the Members holding Units Company into Newco by merger or consolidation or (iii) any other restructuring of the Interests, in any such case in anticipation of an Initial Public Offering, each Member shall receivetake such steps to effect such Transfer, merger, consolidation or other restructuring as may be requested by the Company on terms that are substantially the same (and no less favorable) in respect of such Member’s Interests as other holders of corresponding Interests in respect of such corresponding Interests, including, without limitation, if requested, Transferring such Member’s Interests to Newco in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of Newco, provided, that in the Public Vehicleevent of such an exchange, including (i) an agreement to vote all each Interest would be exchanged for a number of shares of capital Newco stock held by determined in a manner such stockholders to elect that each Member is treated no less favorably than such Member would have been treated upon an Exit Event (assuming the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations value of the Members contained herein consideration to be received by Xxxxx in the Exit Event is the mid-point of the filing range in the IPO); provided, however, in lieu of effecting any such exchange of the Common Units (which mayand/or, at the election option and request of Xxxxx, Override Units) of Management Members, the Company shall, at the request of Xxxxx, pay to the Management Members cash in an amount equal to the aggregate Fair Market Value of the holders of a Majority Class A Interestshares such Management Member would, be contained in otherwise, have received pursuant to the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8preceding proviso. Notwithstanding the preceding sentence, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members shall be required to give take any action or omit to take any action to the extent such action or omission violates applicable law. If the Board determines to effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted an IPO pursuant to this Section 3.8(d13.11(b) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Management Members hereby agree receive shares of Newco pursuant to use their commercially reasonable efforts any such Transfer, merger, consolidation or restructuring, each Management Member and Investor Member agrees to structure enter (as a “Management Shareholder” or a “Outside Investor”, respectively, as set forth therein) into a registration rights agreement on terms substantially comparable to the Conversion to maximize the ability terms of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities ActRegistration Rights Agreement.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Samples: Limited Liability Company Agreement (IAA Acquisition Corp.)
Initial Public Offering. (a) In the event that at any time after the date hereofCompany ----------------------- undertakes an initial public offering of its capital stock with aggregate gross proceeds to the Company of not less than five million dollars ($5,000,000) and with a price per share of not less than $5.00 (a "Qualified IPO"), the Board Company shall give notice of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations intention (and in no event shall otherwise communicate with the Holder during the pendency of such interest, rights or obligations be less favorable to such Member than the terms of their respective Unitstransaction) in the Public Vehicle same manner as are set forth in this Agreement applicable it communicates with the holders of a majority of the issued and outstanding shares of Series A Preferred Stock; if the Warrant is otherwise exercisable pursuant to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result provisions of the Conversion Warrant, the Holder may, in its discretion, exercise same and request registration of the shares in the Qualified IPO pursuant to the registration rights granted to the Holder in Section 7 below; if the Warrant is not so exercised, then, in addition to such Company obligations under such registration rights the Company shall give the Holder not less than twenty (20) business days notice of the expected date of closing of the Qualified IPO (the "Closing"); the Holder shall, not less than three (3) business days prior to the Closing, deliver an irrevocable notice under Section 3 below or if advisable deposit an amount of money equal to the aggregate exercise price of this Warrant into the trust account of the Company's attorneys with irrevocable instructions to pay such amount to the Company immediately prior to the Closing of the Qualified IPO; in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and Holder shall be deemed to have exercised the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply Warrant immediately prior to the Public VehicleClosing and simultaneously converted the shares of Series A Preferred Stock into shares of Common Stock; at or promptly following the Closing, the stockholders of Company shall cause its transfer agent to deliver to the Public Vehicle and Holder a certificate representing the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect Common Stock so purchased; the Board of Directors of such resulting corporation in accordance with Warrant shall expire upon the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted Closing if not previously exercised pursuant to this Section 3.8(d1.3(a) is a special proxy coupled with an interest or otherwise pursuant to the terms of the Warrant; if the Closing does not occur, the Warrant shall be deemed to continue pursuant to the other terms and is irrevocable.
(e) The Company restrictions of the Warrant, and the Members hereby agree to use their commercially reasonable efforts to structure irrevocable notice given under Section 3 below or the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together funds deposited with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company Company's attorneys shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements be promptly returned to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataHolder.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Samples: Warrant Agreement (Usweb Corp)
Initial Public Offering. (a) In the event that If at any time after the date hereof, the Board desires to cause:
(i) a Transfer of Directors determines that it shall facilitate an offering all or a substantial portion of Equity Securities in (x) the assets of the Company or (y) the Units to a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such newly organized corporation or other issuer business entity being hereinafter (an “IPO Entity”), (ii) a merger or consolidation of the Company into or with an IPO Entity as provided under § 18-209 of the Delaware Act or otherwise, (iii) another restructuring of all or a substantial portion of the assets or Units of the Company into an IPO Entity, including by way of the conversion of the Company into a Delaware corporation as provided under § 18-216 of the Delaware Act (any such corporation also herein referred to as an “IPO Entity”), in any such case in anticipation of or otherwise in connection with a Public Offering or a transaction contemplated by clause (2) or (3) of this Section 15.17(a);
(2) a merger or “Public Vehiclereverse merger” transaction by the Company with or into a corporation or other business entity, including a Special Purpose Acquisition Vehicle or “SPAC” (any such entity also herein referred to as an “IPO Entity”) which:
(i) with respect to a SPAC, shall be listed on an exchange prior to the consummation of the merger or reverse merger or, with respect to any other entity, either shall be listed on an exchange prior to the consummation of such merger or reverse merger or for at least the 18 months immediately prior to the consummation of such merger or reverse merger shall have been required to file or shall have voluntarily filed with the SEC all reports and other information required by Section 13 or 15(d) under the General Corporation Law of Exchange Act (collectively, the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionExchange Act Reports”), and within the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.time frames required thereby and
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Unitsii) in any case shall, immediately after the Public Vehicle as are set forth in this Agreement applicable consummation of such merger or reverse merger, be required to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion file or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply voluntarily file, with the SEC all Exchange Act Reports within the time frames required thereby, pursuant to which merger or reverse merger the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all Units are tendered or exchanged for or converted into shares of capital stock held by such stockholders to elect the Board of Directors or other equity interests of such resulting corporation IPO Entity, which class of capital stock or other equity interests is registered pursuant to Section 12 of the Exchange Act; or
(3) a sale of equity securities of the Company or its successor (including an IPO Entity) pursuant to a Public Offering or pursuant to Rule 144A under the Securities Act; (the closing of the first to occur of the transactions contemplated by (1), (2) and (3) being an “Initial Public Offering”), then, each Member shall take such steps to effect such Transfer, merger, reverse merger, consolidation, conversion or other restructuring as may be reasonably requested by the Board, including, without limitation, executing and delivering all agreements, instruments and documents as may be reasonably required and Transferring or tendering such Member’s Units to an IPO Entity in exchange or consideration for shares of capital stock or other equity interests of the IPO Entity, determined in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary valuation procedures set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringSection 15.17(b).
Appears in 1 contract
Samples: Limited Liability Company Agreement (Liquid Holdings Group LLC)
Initial Public Offering. Ladies and Gentlemen: This letter (athis “Letter Agreement”) In is being delivered to you in accordance with the event that at any time after Underwriting Agreement (the date hereof“Underwriting Agreement”) entered into by and among Minority Equality Opportunities Acquisition Inc., the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a Delaware corporation (such corporation or other issuer entity being hereinafter referred to as a the “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionCompany”), and Maxim Group LLC, as representative (the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution “Representative”) of the securities being offered in several underwriters (each, an “Underwriter” and collectively, the Initial “Underwriters”), relating to an underwritten initial public offering (the “Public Offering.
”), of 11,000,000 of the Company’s units (bincluding up to 1,650,000 units that may be purchased to cover over-allotments, if any) If applicable(the “Units”), each comprised of one share of the Members holding Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”), and one redeemable warrant. Each warrant (a “Warrant”) entitles the holder thereof to purchase one share of Common Stock at a price of $11.50 per share, subject to adjustment. The Units shall receive, in exchange for their Units of a particular class, shares of stock will be sold in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(da registration statement on Form S-1 (File No. 333-258241) is a special proxy coupled with an interest and is irrevocable.
prospectus (e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tackProspectus”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested filed by the Company with the U.S. Securities and a managing underwriter, if any, in connection with any Initial Public Offering Exchange Commission (the “Commission”) and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of has applied to have the Company shall enter into similar agreements, thereby agreeing not Units listed on The Nasdaq Capital Market. Certain capitalized terms used herein are defined in paragraph 11 hereof. In order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by induce the Company and the managing underwriterUnderwriters to enter into the Underwriting Agreement and to proceed with the Public Offering and for other good and valuable consideration, if any. Notwithstanding the foregoingreceipt and sufficiency of which are hereby acknowledged, in each of Minority Equality Opportunities Acquisition Sponsor, LLC (the event any Member “Sponsor”) and the undersigned individuals, each of whom is released by a member of the Company’s board of directors and/or management team (each, an “Insider” and collectively, the “Insiders”), xxxxxx agrees with the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.as follows:
Appears in 1 contract
Samples: Underwriting Agreement (Minority Equality Opportunities Acquisition Inc.)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members Buyer shall use their commercially reasonable efforts to effectuate such Conversion and take such actions file a registration statement on Form SB-2 under the Securities Act on substantially the same terms as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public OfferingLOI.
(b) If applicableEach of the Sellers and the Company shall use commercially reasonable efforts to cooperate in connection with Buyer's proposed initial public offering of shares of Class A Common Stock, including, without limitation, (i) assisting the Company and the Underwriter in preparing and filing a registration statement on Form SB-2 in respect of the proposed initial public offering of such shares and responding to comments by the Securities and Exchange Commission ("SEC") in respect of such registration statement; (ii) providing any documents or materials, including, without limitation, financial statements in respect of the Company and the Business, necessary to prepare and file such registration statement; (iii) causing the Company's independent accountants to be available to, and to cooperate with, Buyer, the Members holding Units shall receiveUnderwriter and the SEC in connection therewith and (iv) reaffirming to Buyer, in exchange for their Units of a particular classand not to any other person or entity, shares of stock in the Public Vehicle representations and warranties of the relevant class having Sellers and the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation Company in Section 2.1 hereof on and compounding and, in as of (A) the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations date ten (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units10) in the Public Vehicle as are set forth in this Agreement applicable days prior to the Unitseffective date of such registration statement, subject (B) the day prior to the effective date of such registration statement and (C) the Closing of such initial public offering; provided, however, that neither the Sellers nor the Company shall have any modifications deemed appropriate by liability with respect to the Board inaccuracy of Directors any such representations or warranties except as a result may be provided in Section 7 of the Conversion or if advisable in order to effectuate the Initial Public Offeringthis Agreement.
(c) In connection with such eventproposed initial public offering, the Public Vehicle and the Members (in their capacities as stockholders each of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public VehicleSellers agrees, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1LOI, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorneyrefrain, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(deighteen (18) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following months after the effective date of the relevant registration statement filed under the Securities Act in connection with therewith or such lesser period as the Initial Public OfferingUnderwriter may agree (the "Lock-Up Period"), from making any public sale or distribution of any of their shares of Buyer Common Stock or Additional Buyer Common Stock, as applicable, without the prior written consent of the Underwriter (the "Underwriter's Consent") and to execute and deliver any agreement to such managing underwriter shall specify effect reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriterUnderwriter; provided, if any. Notwithstanding the foregoinghowever, that (i) in the event any Member shareholder of Buyer that is released by the Company and beneficial or record owner of less than 100,000 shares of Class A Common Stock (or securities convertible into such number of shares of Class A Common Stock) is permitted to sell shares of Class A Common Stock prior to the managing underwriterexpiration of Sellers' Lock-Up Period, if any, from the restrictions contemplated by this Section 3.8(f), all other Members each Seller shall be released from the lock-up with respect to a minimum of 50,000 shares per three month period commencing on the date such other shareholder is permitted to sell shares, (ii) no stockholder of Buyer holding 100,000 shares of Class A Common Stock (or securities convertible into such number of shares of Class A Common Stock) shall have lock-up restrictions prothat are more favorable (in terms of length, scope or otherwise) than those applicable to Sellers and (iii) the Lock-rata.
Up Period shall immediately terminate in the event that any holder of 100,000 shares or more of Class A Common Stock (gor securities convertible into such number of shares of Class A Common Stock) Notwithstanding anything to is released, in whole or in part, from the contrary applicable lock-up restrictions. The share numbers set forth in this AgreementSection 3.3(c) shall be subject to proportionate adjustment in the event of any stock splits, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units reclassifications or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringsuch similar events.
Appears in 1 contract
Samples: Stock Purchase Agreement (Access Integrated Technologies Inc)
Initial Public Offering. (a) In Upon an initial public offering of ----------------------- CCT, CCA, CCE or any successor in interest to CCT, CCA, or CCE, CCE's obligations to Cencom set forth in Sections 1-3 will terminate and CCT and CCE will be obligated to cause to be issued to Cencom equity securities of the event that at any time after entity which is making such initial public offering of the same type which are being offered to the public and having an aggregate fair market value equal to the amount which would be payable to Cencom pursuant to Section 1 if as of the date hereofof such initial public offering the Partnerships sold 100% of their assets for fair market value for cash and distributed the net proceeds to their partners. For purposes of this Section 4, "fair market value" will be determined with reference to the Board of Directors determines that it shall facilitate an initial public offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law price of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the equity securities being offered in to the Initial Public Offeringpublic by such entity making an initial public offering.
(b) If applicable, Notwithstanding the Members holding Units shall receive, in exchange for their Units provisions of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding andSection 4(a), in the case event that an issuance of the Class A Units, the other characteristics equity securities to Cencom pursuant to Section 4(a) would cause Cencom or any of the Class A Units, voting, management its affiliates to have an attributable interest in a cable operator for purposes of 47 C.F.R. (section section)76.1000 - 76.1003 and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result any of Gaylord's Entertainment Company's cable networks would be prohibited from offering programming on an exclusive basis to cable delivery systems, then, at Cencom's option, CCT and CCE will cause such number of equity securities to be issued to Cencom as, in the Conversion opinion of Cencom's counsel, will not result in Cencom or if advisable in order to effectuate its affiliates having such an attributable interest and CCT and CCE will have the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including option either (i) an agreement to vote all shares pay or to cause to be paid to - Cencom in cash the fair market value of capital stock held by such stockholders to elect the Board of Directors balance of such resulting corporation in accordance equity securities otherwise issuable pursuant to Section 4(a) up to the amount of the net proceeds from the initial public offering received by the entity making such initial public offering, with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriterbalance, if any, payable in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to a subordinated note of such Member that all officers and directors of the Company and all holdersentity, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into equity securities with appropriate registration rights, or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any (ii) to cause the balance of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securitiessuch equity securities otherwise -- issuable pursuant to Section 4(a) to be sold on behalf of Cencom in such initial public offering. In any event, Cencom will be entitled to have such number of its securities registered and sold in such initial public offering in the Company same proportion as the number of securities owned by Xxxxx and Charter bears to the number of securities to be registered and sold by Xxxxx and Charter in an underwritten such initial public offering.
Appears in 1 contract
Samples: Contingent Payment Agreement (Cencom Cable Entertainment Inc /New)
Initial Public Offering. At any time upon the determination of the Board that an Initial Public Offering is in the best interests of the Company and the Members, and upon approval by a Supermajority Vote of the Board if such Initial Public Offering does not constitute a Qualified Public Offering, subject to applicable Law and receipt of applicable regulatory approvals, either (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company shall be required to contribute all or a successor through specified portion of the assets of the Company to a corporation newly formed under the Laws of the State of Delaware (the “New Company”), or (b) the Members shall be required to contribute their Interests to the New Company, in each case in exchange for shares of the New Company’s stock having substantially the same equity interests and voting rights as the Interests being contributed (“New Company Shares”), and the Company shall cause the New Company to file and use its best efforts to have declared effective a registration statement under the Securities Act for an Initial Public Offering, then the Board of Directors shall have the power and to cause the New Company and its officers and employees to be reorganized as use their best efforts to market the New Company Shares, subject to all applicable Securities Act restrictions. To the extent required by the underwriters managing a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law registered public offering of the State of Delaware by incorporationNew Company Shares, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable each Member agrees to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation execute all customary questionnaires and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than similar documents so required under the terms of their respective Units) in such underwriting agreements. Upon the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board consummation of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f8.1(d), all this Article XI, Schedule 8.1(i)(v), and such other Members provisions as the Board may determine, including this Agreement in its entirety, shall terminate automatically and be released from such restrictions pro-rata.
(g) of no further force and effect. Notwithstanding anything to the contrary set forth in this Agreementherein, as a condition to an Initial Public Offering, the restrictions contained in this Agreement Company or any successor thereto shall not apply enter into a registration rights agreement, upon commercially reasonable terms, with any Member requesting such agreement with respect to Units, any other the registration of its Equity Securities or any securities convertible into or exercisable or exchangeable with customary terms and conditions and in form and substance reasonably satisfactory to the Board and such Member; provided that such registration rights agreement shall include (i) demand registration rights that apply (A) equally to all Members, (B) only after an Initial Public Offering, and (C) subject to customary minimum thresholds and (ii) piggyback registration rights for Units or other Equity Securities acquired by any Member, including acquired by any of all Members on a pro rata basis in proportion with their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering relative common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.equity interests.
Appears in 1 contract
Samples: Limited Liability Company Agreement
Initial Public Offering. (a) In If the event that Company at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an proposes its Initial Public Offering, then it will give notice to the Board Founders of Directors shall have its intention to do so. Upon the power written request of any Founder to register any of its Restricted Stock, the Company will use its best efforts to cause the Company Restricted Stock as to which registration shall have been so requested to be reorganized as a corporation (such corporation included in the securities to be covered by the registration statement proposed to be filed by the Company, all to the extent requisite to permit the sale or other issuer entity being hereinafter referred disposition by the Founder of such Restricted Stock so registered. The number of shares of Restricted Stock to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete be included in the Initial Public Offering in a manner designed may be reduced (pro rata among the requesting Founders based upon the number of shares of Restricted Stock owned by the Founders) if and to achieve a fair price and broad public distribution the extent that the managing underwriter shall be of the opinion that such inclusion would adversely affect the marketing of the securities being offered to be sold by the Company therein, provided, however, that such number of shares of Restricted Stock shall not be reduced if any shares are to be included in such underwriting for the Initial Public Offering.
(b) If applicableaccount of any person other than the Company or the Founders. For purposes of this Section 2.3 and Sections 2.4, 2.5, 2.6, 6.1 and 6.4, the Members holding Units term "Restricted Stock" shall receive, in exchange for their Units be deemed to include the number of a particular class, shares of stock in the Public Vehicle Restricted Stock which would be issuable to a holder of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case Preferred Shares upon conversion of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect Preferred Stock; provided, however, that the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (only securities which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreementsbe required to register pursuant hereto shall be shares of Common Stock; provided, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offeringfurther, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if sohowever, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoingthat, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions underwritten public offering contemplated by this Section 3.8(f)2.3 or Sections 2.4, all other Members 2.5 and 2.6, the holders of Preferred Shares shall be released from entitled to sell such restrictions pro-rata.
(g) Notwithstanding anything Preferred Shares to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable underwriters for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date conversion and sale of the first registration statement shares of the Company covering common stock (Common Stock issued upon conversion or other securities) to be sold on behalf of the Company in an underwritten public offeringexercise and conversion, as applicable, thereof.
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, contrary contained herein but subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation4.01(d).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory approved in accordance with this Agreement, the Members hereby agree to such Member that all officers and directors discuss in good faith whether any of the rights and obligations of the parties hereto and the Company and all holdersunder this Agreement should be amended, collectively with their Affiliates and Approved Fundsrestructured or terminated, including, without limitation, whether any of one percent (1%the rights set forth in Sections 4.01(d) or greater of Equity Securities of the Company shall enter into similar agreements8.04 hereof should be terminated or made subject to any time limitations, thereby agreeing not in order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with permit the Initial Public OfferingOffering to be effected in a manner consistent with applicable Law, market custom and the recommendations of the Global Coordinators in light of market conditions at such time and the listing requirements of the exchange or market on which the Initial Public Offering is to be effected, taking into account, among other things, the rights of the Preferred Members hereunder and their goal and expectation that the Senior Preferred Redemption and the Junior Preferred Payment be effected as such managing underwriter promptly as practicable after the date hereof; provided, however, that this sentence shall specify reasonably and not in good faith. Each Member shall enter into customary letter agreements to any way either (x) obligate any of the foregoing effect if so, requested by Members or the Company and to agree to any amendment, restructuring or termination of any such rights or (y) affect or nullify any rights or obligations of the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by Members or the Company and the managing underwriter, if any, from the restrictions contemplated by under this Section 3.8(f), all other Members shall be released from such restrictions pro-rataAgreement.
(gb) Notwithstanding anything to the contrary set forth contained herein but subject to Section 4.01(d), in connection with any Initial Public Offering of the Company (or its successor corporation) or any newly formed corporation as described below, approved in accordance with this Agreement, and upon the restrictions contained request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Entity subject to such Public Offering, take such action and execute such documents as may reasonably be necessary to effect such Public Offering, as expeditiously as possible, including, without limitation, taking all such actions and executing such documents as may reasonably be necessary to convert the Company into a corporation or to contribute its respective Securities to a newly formed corporation, in this Agreement each case substantially concurrently with the closing of such Public Offering; provided, however, that in connection with any such conversion or contribution, (i) each Preferred Member shall not apply be entitled to Units, any other Equity Securities receive preferred stock of the corporation whose shares of common stock are being sold in connection with such Public Offering with the same economic rights as such Preferred Member was entitled to prior to such conversion or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontribution, including acquired by any of their respective Affiliates or Approved Fundswith an aggregate liquidation preference equal to the amount such Preferred Member would be entitled to receive, following the effective date in respect of the first registration statement Preferred Units which such Preferred Member held in the Company immediately prior to such conversion or contribution, under Section 5.03 hereof if a liquidation of the Company covering common stock (or other securities) had occurred immediately prior to be sold on behalf the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in an underwritten public offering.good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; (ii) the Common Members shall be entitled to receive that value of common stock of the corporation whose shares of common stock are being sold in connection with such Public Offering as equals the amount such Common Member would be entitled to receive, relative to the Common Units which such Member held in the Company immediately prior to such conversion or contribution, under Section 5.03 hereof if a liquidation of the Company had occurred immediately prior to the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such
Appears in 1 contract
Samples: Purchase Agreement (American International Group Inc)
Initial Public Offering. (a) In The Company shall complete a Qualified Initial Public Offering on or before March 31, 2023 (the event that at any time after “Long Stop QIPO Date”). The Company shall and the date hereofFounders shall cause the Company, to seek the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an requisite statutory and regulatory approvals for such Qualified Initial Public Offering, then and, in connection therewith, take all steps as regards such Qualified Initial Public Offering such that the Board requisite number of Directors Equity Shares shall have be contributed or offered by all Shareholders, other than the power Investors so as to cause meet any minimum listing requirements (but, including an Investor’s Shares, only if so desired by such Investor) and are, subject to this Agreement, offered to the public and the same are listed at the concerned registered stock exchange(s). For the purposes of this Clause, Equity Shares shall include the equity shares of the Subsidiaries, from time to time. Without limiting the generality of the foregoing, the Company and the Founders shall, and the Shareholders shall provide all reasonable support to the Company to:
(i) take all requisite steps to commence and complete the procedure of a Qualified Initial Public Offering within the timelines stipulated by the Investors;
(ii) not unduly withhold approvals for listing of the Equity Shares on the concerned registered stock exchange(s) in terms of this Agreement as per the Applicable Laws;
(iii) take all the necessary steps for, and conduct, any road shows, finalization of prospectus, proposals for increase in Equity Share capital, issue amount, issue price, and mode of issue before approaching the concerned competent authorities for approvals;
(iv) engage the services of a reputed Category 1 merchant banker for advice on the Qualified Initial Public Offering;
(v) ensure that the total offer of Equity Shares to the public shall constitute not less than the minimum required and as prescribed under the prevalent rules at the time of the Qualified Initial Public Offering of the total post issue paid-up Equity Share capital of the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under comply with the General Corporation Law listing requirements of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), concerned registered stock exchange(s) and the Members shall use their commercially reasonable efforts to effectuate such Conversion Securities Regulator;
(vi) provide all material information and take such actions as are reasonably necessary or desirable to complete ensure compliance with all applicable provisions under all Applicable Laws in force at the time of the Qualified Initial Public Offering in a manner designed and the subsequent listing of the Equity Shares of the Company for trading on the concerned registered stock exchange(s); and
(vii) do all acts and deeds required to achieve a fair price the listing on the concerned registered stock exchange(s) in terms of this Agreement and broad public distribution of as per the securities being offered in the Initial Public OfferingApplicable Laws.
(b) If applicableThe Parties expressly understand, acknowledge and agree that subject to Applicable Laws including principles governing financial assistance, the Members holding Units Company shall receive, in exchange be responsible and liable for their Units of a particular class, shares of stock in the Public Vehicle any breach of the relevant class having the same relative seniorityCompany’s representations, preferencewarranties, accumulated dividendscovenants, dividend rate, dividend accumulation obligations and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are undertakings set forth in this Agreement applicable any agreement, instrument and other document in relation to the UnitsQualified Initial Public Offering; Provided However That, subject if any Shareholder offers Equity Shares for sale pursuant to the Qualified Initial Public Offering, such Shareholder shall solely be responsible for any modifications deemed appropriate breach of its representations, warranties, covenants, obligations and undertakings set forth in any agreement, instrument and other document, and shall also be responsible for the underwriting discounts, commissions and legal costs as regards the sale of its / his / her Equity Shares in such offer for sale, in relation to the Qualified Initial Public Offering, on a pro-rata basis. It is hereby clarified that, except with respect to the expenses to be borne by a Shareholder with respect to the Board of Directors Equity Shares offered for sale by such Investor in a Qualified Initial Public Offering, as a result of stipulated above, the Conversion or if advisable Company shall be responsible and liable for all costs and expenses incurred in order to effectuate connection with the Qualified Initial Public Offering.
(c) In It is understood and agreed that the Investors shall represent and warrant only as to their respective title to the Equity Shares held by them and offered by such event, Investors for sale in the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Qualified Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehiclein respect of no other representation, the stockholders of the Public Vehicle warranty, covenant, obligation and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation)/ or undertaking.
(d) Except as otherwise provided in this Section 3.8, no Member will have In the right or power event the merchant bankers to veto, vote for or against, amend, modify or delay a Conversion the issue or the Initial Public Offering. In furtherance Securities Regulator, require that immediately prior to the issue of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, a draft red xxxxxxx prospectus for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Qualified Initial Public Offering all agreements between or among Shareholders including pre-emptive rights, voting restrictions, and upon confirmation reasonably satisfactory restrictions or prohibitions on the Transfer of Shares shall be terminated, then the relevant provisions of this Agreement shall, only to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date extent of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offeringrequirement be terminated, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, provided that in the event any Member that the Qualified Initial Public Offering is released by thereafter called off or the Company otherwise is not listed within 30 (thirty) days of such termination, the Company, the Founders and the managing underwriter, if any, from other Shareholders shall execute fresh agreements on the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-ratasame terms as the agreements which have been terminated.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Samples: Shareholders’ Agreement
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, in the restrictions contained in this Agreement shall not apply event that the Managing Member determines to Unitseffect a Qualified IPO, any the Members agree to cooperate to effect such reorganization or other Equity Securities transaction and enter into such other agreements that the Managing Member determines are necessary or appropriate to effect such Qualified IPO, including all actions that the Managing Member determines are necessary to (i) cause the conversion of all or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement portion of the Company covering common stock (or other securities) to be sold on behalf any Subsidiary of the Company into a corporation, by (A) the direct or indirect transfer of all of the assets of the Company, subject to the Company’s liabilities, or of any portion of such assets and liabilities, to one or more corporations in an underwritten exchange for shares of any such corporations, (B) the conversion of the Company or a Subsidiary of the Company into a corporation pursuant to Section 18-216 of the Act (or any successor section thereto) or (C) the transfer by each Member of Units held by such Member to one or more corporations in exchange for shares of any such corporation (including by merger of the Company into a corporation) or (ii) cause the Company to use any other structure or means by which to effect a Qualified IPO; provided, that, in each case the relative rights, preferences, privileges, and powers to which the Class B Members are entitled hereunder shall not be modified in a manner materially adverse to the holder thereof as compared to the rights, preferences, privileges, or powers to which such holder is entitled hereunder. In connection therewith, each Member agrees (if directed by the Managing Member) to exchange its Units for equity interests in a new holding company, or common shares of a corporation or other public offeringvehicle (the entity used to effectuate a Qualified IPO, as designated by the Managing Member, the “IPO Entity”), which equity interests or shares shall have the relative rights, preferences, privileges, and powers to which such holder is entitled hereunder, and shall be issued to the Members in a manner which maintains the relative Percentage Interest of each such Member (such exchanged shares, “Conversion Shares”).
(b) Promptly following the determination of the number of Conversion Shares to be received in respect of each Unit under Section 7.05(a) (if any), each Member shall deliver to the Company the certificates, if any, representing the Units to be converted into Conversion Shares, duly endorsed or assigned in blank or to the Company (if required by it) and stating the name or names (with address) in which certificates or certificates for the Conversion Shares, if any, are to be issued.
(c) The Members shall, and hereby agree to take any and all actions deemed necessary or appropriate by the Managing Member in connection with the consummation of those actions contemplated by this Section 7.05 (subject to the terms and conditions hereof), including entering into agreements (i) providing for the exchange of Units as contemplated by Section 7.05(a) (and consents and waivers of claims in connection therewith), (ii) containing customary lock-up and resale restrictions and (iii) to vote all Conversion Shares held by them to elect persons designated by the Managing Member as the directors of the IPO Entity. In connection with a Qualified IPO contemplated by this Section 7.05, the Company, the IPO Entity and the applicable Members shall enter into a customary registration rights agreement, which shall include customary piggyback registration rights; provided, however, that no such registration rights agreement shall be required to include demand registration rights for any holder of Class B Units or its Affiliates. The rights and restrictions set forth in Article 7 will expire immediately prior to the closing of such Qualified IPO, and the Conversion Shares issued to the Members shall be subject to (x) applicable restrictions under federal and state securities laws, and (y) any restrictions set forth in the agreements or other instruments relating to the Qualified IPO or any transfer, merger, consolidation or other restructuring or reorganization transaction entered into in anticipation or contemplation of such Qualified IPO. For the avoidance of doubt, no exchange or conversion of any Unit (or any portion thereof) contemplated by this Section 7.05 shall be deemed a “Disposition” for purposes of this Agreement.
(d) When determining what structure to implement for the Qualified IPO and what actions to be undertaken to facilitate the Qualified IPO, the Managing Member shall use commercially reasonable efforts to implement a structure that the Managing Member determines in good faith to be reasonably tax-efficient for the Members and their direct and indirect equityholders (taken as a whole); provided, that, for the avoidance of doubt, no Member shall be required to make any Capital Contribution or other investment in connection with any of the foregoing (other than to exchange its Units for Conversion Shares); provided, further, that, in connection with a Qualified IPO, (x) any amendment, modification or other changes to this Agreement or the Delaware Certificate and (y) any merger, recapitalization, share contributions or other restructurings or reorganizations shall all be contingent on the consummation of such Qualified IPO.
Appears in 1 contract
Initial Public Offering. (a) In Notwithstanding anything to the event that contrary in this Agreement (including Sections 7.2 and 12.5) and subject solely to the satisfaction of the IPO Conditions (unless waived in whole or in part in writing by, with respect to the Class A IPO Condition, any member of the Class A Group holding Limited Partner Interests or by, with respect to the Class AQ IPO Condition, the Class AQ Group), the Initial Public Offering may be initiated and approved at any time after by the date hereof, General Partner without the Board consent of Directors determines that it shall facilitate an offering of Equity Securities in any other Partner. In connection with the Company or a successor through an Initial Public Offering, then (i) the Board of Directors Partners shall have amend and restate this Agreement in the power to cause form attached hereto as Exhibit B (the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionThird A&R LPA”), and with such changes thereto as the Members General Partner shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably deem necessary or desirable appropriate in its sole discretion; (ii) the Units outstanding immediately prior to complete the Initial Public Offering shall be converted into an aggregate number of Common Units and Subordinated Units as the General Partner shall determine is appropriate (such aggregate number of Common Units and Subordinated Units, the “Total IPO Units”) with each Class A Preferred Unit, Class AQ Unit and Class B Preferred Unit converting into such number of Common Units and/or Subordinated Units as is provided in a manner designed Sections 6.6(b), Section 6.6(c) and Section 6.6(d), respectively, and (iii) the General Partner shall be authorized to achieve a fair price cause the Partnership to negotiate, prepare, execute and broad public distribution deliver such other agreements, documents and other instruments (including with any Affiliates of the securities being offered Partnership or any Partner), and take such other actions (including the issuance of any securities), as the General Partner shall deem necessary or appropriate in its sole discretion to effect the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate In connection with the Initial Public Offering, each Class A Preferred Unit shall convert into a number of Common Units equal to “X” multiplied by “Y,” where “X” equals a fraction, the numerator of which is the total number of Class A Preferred Units outstanding immediately prior to such conversion and the denominator of which is the GPM PETROLEUM LP SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class A Preferred Units outstanding immediately prior to such conversion; provided, however, that if the value of the Common Unit(s) into which each outstanding Class A Preferred Unit would convert in accordance with the foregoing formula (based on the Initial Unit Price) is less than (the amount of such shortfall, the “IPO Shortfall”) the sum of (i) the Preferred Return of such Class A Preferred Unit as of the date of conversion plus (ii) the Cumulative Class A Preferred Unit Arrearage, if any, with respect to such Class A Preferred Unit as of the date of conversion plus (iii) the Current Distributions on such Class A Preferred Unit as of the date of conversion (collectively, the “Class A IPO Condition”), then the Class A Preferred Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class A IPO Condition to be satisfied (such Common Units into which the Class A Preferred Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class A IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the IPO Shortfall to be satisfied by the payment of cash to the holders of Class A Preferred Units.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate connection with the Initial Public Offering) , each Class AQ Unit shall convert into a number of Common Units equal to continue to apply to the Public Vehicle“X” multiplied by “Y,” where “X” equals a fraction, the stockholders numerator of which is the total number of Class AQ Units outstanding immediately prior to such conversion and the denominator of which is the total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class AQ Units outstanding immediately prior to such conversion; provided, however, that if the value of the Public Vehicle and the capital stock of the Public Vehicle, including (iCommon Unit(s) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation into which each outstanding Class AQ Unit would convert in accordance with the substance foregoing formula (based on the Initial Unit Price) is less than (the amount of Section 6.1such shortfall, and (iithe “Class AQ IPO Shortfall”) the rights and obligations Class AQ Unit Purchase Price (the “Class AQ IPO Condition”), then the Class AQ Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class AQ IPO Condition to be satisfied (such Common Units into which the Class AQ Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class AQ IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the Members contained herein (which may, at Class AQ IPO Shortfall to be satisfied by the election payment of cash to the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation)AQ Units.
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or In connection with the Initial Public Offering. In furtherance of the foregoing, each Member hereby makesClass B Preferred Unit shall convert into a number of Units (as defined in the Third A&R LPA) equal to “X” divided by “Y,” where “X” equals the number of Total IPO Units less the number of Class A IPO Common Units less the number of Class AQ IPO Common Units and “Y” equals the total number of Class B Preferred Units outstanding immediately prior to such conversion (the “Class B IPO Units”). The General Partner shall be entitled, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefitsole discretion, to act as its proxy in respect determine the number of any vote or approval Class B IPO Units that shall be Common Units and the number of Members required to give effect to this Section 3.8, including any vote or approval required under the ActClass B IPO Units that shall be Subordinated Units. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.GPM PETROLEUM LP SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
(e) The Company and In connection with the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability Initial Public Offering, all of the Members Incentive Distribution Rights shall be issued to aggregate (or “tack”) the period during which they hold their Units together with General Partner as set forth in the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities ActThird A&R LPA.
(f) Each Member (including any Transferee thereof) agreesIn connection with the Initial Public Offering approved in accordance with this Agreement, if requested by each Partner, upon the Company and request of the lead underwriter(s), shall enter into a managing underwritercustomary lock-up agreement at the time of the Initial Public Offering covering the Common Units, if any, to be received by such Partner pursuant to Section 6.6(a) for a lock-up period of no longer than 180 days.
(g) Each member of the Class A Group shall be required to sell up to 50% of its Common Units in the Initial Public Offering, as determined by the General Partner in its sole discretion; provided, that the Partnership will (a) pay all fees and expenses incurred by the Partnership in connection with any the Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors (b) reimburse the members of the Company and all holdersClass A Group for (i) the reasonable, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities documented out-of-pocket expenses incurred by members of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act Class A Group in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably including fees and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if soexpenses of attorneys, requested accountants and advisors retained by the Company Class A Group, up to a maximum, with respect to such expenses incurred by members of the Class A Group, of $50,000 and (ii) the managing underwriter, if any. Notwithstanding Class A Group’s pro rata portion of all underwriting discounts and commissions received by the foregoing, underwriters in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataInitial Public Offering.
(gh) Notwithstanding anything in Sections 6.6(b), 6.6(c) or 6.6(d) to the contrary set forth contrary, if prior to the Initial Public Offering the Partnership effects a Reclassification Event in this Agreementa manner that is not applied consistently and on a pro rata basis to all classes of Partnership Interests outstanding at the time of such Reclassification Event, then the restrictions contained formulas in this Agreement Sections 6.6(b), 6.6(c) and 6.6(d) shall not apply be adjusted to Units, negate any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any dilutive effects of their respective Affiliates or Approved Funds, following such Reclassification Event. Such an adjustment shall be made at the effective date time of the first registration statement of Initial Public Offering and take into account all such Reclassification Events that have occurred prior to the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringdate thereof.
Appears in 1 contract
Initial Public Offering. (a) 16.1 If so requested by a by a Qualified A Majority and a Qualified B majority, the Company and the Shareholders shall attempt to have all or part of the Shares offered to the public by way of an Initial Public Offering.
16.2 In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board all Shareholders shall be treated equally, subject to applicable law and any regulatory requirements.
16.3 In view of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), an ordinary exit and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the upon an Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby Shareholders agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (be bound by regulatory stock exchange lock-up restrictions applicable or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act standard in connection with the Initial Public Offering, as such managing underwriter Offering and shall specify reasonably execute standard agreements and undertakings in good faiththis respect. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members Shareholder shall be released pro rata from any such restrictions prolock-rataup if any other Shareholder is released from his lock-up.
16.4 In the event that an Initial Public Offering requires the restructuring of the Company (g) Notwithstanding anything e.g. a transfer of the Shares to a foreign holding company), the Shareholders shall, and shall procure that the Directors shall, exercise all voting power and other power of control available to them directly or indirectly in relation to the contrary set forth Company to do such acts and actions and to make such declarations as required to effect such restructuring to the extent that such acts, actions and declarations shall not result in this Agreementunreasonable tax burden for the Company and/or any of the Shareholders.
16.5 Upon the occurrence of an Initial Public Offering, the restrictions on Transfer of Shares contained in this Agreement Article 6, the right of first refusal contained in Article 8, the drag-along and tag-along rights contained in Articles 9 and 10 shall not apply apply. In addition, as provided for in Article 7.1, all Shareholders waive and agree to Units, waive all pre-emptive rights (droit de souscription préférentiel) with respect to any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any issuance of their respective Affiliates or Approved Funds, following the effective date Shares in connection with an Initial Public Offering.
16.6 The Common Shares and shares issuable on conversion of the first Preferred Shares will be entitled, if applicable, to standard demand registration statement of the rights, Form S-3 registration rights and piggyback rights. The Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringshall pay all registration expenses for demand, piggyback and S-3 registrations, as applicable.
Appears in 1 contract
Samples: Shareholder Agreement (ObsEva SA)