Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period. (b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date. (c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7. (d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7. (e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7. (f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification. (g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 4 contracts
Samples: Stockholders' Agreement (Rice Acquisition Corp. II), Business Combination Agreement (Rice Acquisition Corp. II), Support Agreement (Rice Acquisition Corp. II)
Lock-Up. (a) Subject to Sections 7(b) and 7(c)except as otherwise determined by the Board, each NET Power Holder agrees with of the Company Topco Equityholders and the Horizon Equityholders agree that it, he or she they shall not Transfer any of their Lock-up Up Shares of such NET Power Holder (if any and to during the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance ; provided that, (i) 50% of doubt, the their respective Lock-up Shares shall not apply to any Company Interests, warrants or other securities of be released on the Company date that is six (whether acquired in 6) months following the open market, directly from Closing and (ii) the Company, upon exercise of any warrants or otherwise) other than the remaining Lock-up SharesShares shall be released on any date, at least six (6) months following the Closing, on which (A) the price per Lock-up Share exceeds $15.00 per share for twenty (20) trading days within a consecutive thirty (30) day trading period and (B) the average daily trading volume exceeds one (1) million shares of Common Stock during such consecutive thirty (30) trading day period. Nothing Any waiver of the restrictions set forth in this Section 7 7(a) shall prohibit a NET Power Holder from require the establishment approval of a trading plan pursuant to Rule 10b5-1 promulgated under majority of the Exchange Actdirectors of the Board; provided, provided that such plan does not provide for however, (i) any waiver of the Transfer restrictions in this Section 7(a) in respect of Lock-Up up Shares during held by any of the Topco Equityholders shall require the approval of a majority of the members of the Board who are not Topco Designees and (ii) any waiver of the restrictions in this Section 7(a) in respect of Lock-Up Periodup Shares held by any of the Horizon Equityholders shall require the approval of a majority of the members of the Board excluding the Horizon Designee.
(b) Notwithstanding the provisions set forth in Section 7(a), each of the Topco Equityholders, the Horizon Equityholders and any NET Power Holder or its of their respective Permitted Transferees may shall be permitted to Transfer the their Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to (A) the Company’s officers or directors, (B) any affiliates or family members of the Company’s officers or directors or (C) with respect to any Topco Equityholder and its Permitted Transferees, any direct or indirect partners, members or equity holders of the Topco Equityholders, any Affiliates of the Topco Equityholders or any related investment funds or vehicles controlled or managed by such persons or their respective Affiliates or, with respect to any Horizon Equityholder and its Permitted Transferees, any direct or indirect partners, members or equity holders of the Horizon Equityholders, any Affiliates of the Horizon Equityholders or any related investment funds or vehicles controlled or managed by such persons or their respective Affiliates; (ii) in the case of an individual, by gift to a member of the individual’s immediate family or to a trust, the beneficiary of which is a member of the individual’s immediate family or an affiliate of such NET Power Holder’s Permitted Transfereesperson; (iii) by gift to a charitable organization; (iv) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (v) in the case of an individual, pursuant to a qualified domestic relations order, (vi) in connection with any bona fide mortgage, encumbrance or pledge to a financial institution in connection with any bona fide loan or debt transaction or enforcement thereunder; (vii) to the Company (provided that any Transfers to the Company are pro rata as between the Topco Equityholders and the Horizon Equityholders, except as otherwise approved by the Board (including at least one Topco Designee and one Horizon Designee)); or (iiviii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing DateDate (each such transferee in clauses (i) – (vii) collectively, a “Permitted Transferee”); provided, however, that in the case of clauses (i) through (v) these Permitted Transferees must enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Section 7.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder shall expire, and each Topco Equityholder, Horizon Equityholder and its respective Permitted Transferees, in each case, in the aggregate as shall be entitled to Transfer all of immediately following the Closing (the aggregate Price-Based its Lock-up Shares, as adjusted for immediately upon the date on which the Company completes a liquidation, merger, capital stock splitsexchange, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares reorganization or other similar transaction that results in excess all of the NET Power Holders Price-Based Shares described in Company’s stockholders having the foregoing clause (i) (i.e., up right to two-thirds exchange their shares of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer Common Stock of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable for cash, securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofother property.
Appears in 3 contracts
Samples: Transaction Agreement (Horizon Acquisition Corp), Stockholders’ Agreement (Vivid Seats Inc.), Stockholders’ Agreement (Horizon Acquisition Corp)
Lock-Up. The Company will not, without the prior written consent of the Representative and the Underwriters, offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale, hedge or otherwise dispose of (aor enter into any swap, transaction or other agreement that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees by the Company or any affiliate of the Company or any person in privity with the Company that itor any affiliate of the Company), he directly or she shall not Transfer any Lock-up Shares indirectly, including the filing (or participation in the filing) of such NET Power Holder (if any and a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to the extent applicableSecurities (other than as contemplated hereunder), any other Units, ordinary shares, warrants or any securities convertible into, or exercisable, or exchangeable for, ordinary shares or publicly announce an intention to effect any such transaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, however, that the Company may (1) until issue and sell the end Placement Units (including the Subunits and Warrants thereunder), and the Working Capital Warrants and any Class A Ordinary Shares underlying the Placement Units (including the Subunits and Warrants thereunder) and the Working Capital Warrants, (2) issue and sell the Option Units on exercise of the applicable Lock-up Period option provided for in Section 1.2, (3) issue shares or any securities convertible into, or exchangeable for, Class A Ordinary Shares in connection with the “Lock-up”). For initial Business Combination and (4) register with the avoidance Commission pursuant to the Registration Rights Agreement in accordance with the terms of doubtthe Registration Rights Agreement the resale of the Founder Shares, the Lock-up Representative’s Shares, the Placement Units (including the Subunits and Warrants thereunder), the Working Capital Warrants and the Ordinary Shares underlying the Placement Units (including the Subunits and Warrants thereunder) and the Working Capital Warrants; provided that the foregoing restrictions shall not apply to the forfeiture of any Company Interests, warrants Founder Shares pursuant to their terms or other securities any transfer of Founder Shares to a future independent director of the Company (whether acquired in as long as such future independent director is subject to the open market, directly from terms of the Company, upon exercise of any warrants or otherwise) other than Insider Letter with respect to such Founder Shares at the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares time of such NET Power Holder (if any transfer; and as long as, to the extent applicable) during any Section 16 of the Lock-up Period (i) to any Exchange Act reporting obligation is triggered as a result of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidationtransfer, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all any related Section 16 of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) Exchange Act filing includes a practical explanation of the Charter shall not be deemed a Transfer for purposes of this Section 7transfer).
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 3 contracts
Samples: Underwriting Agreement (Global SPAC Partners Co,), Underwriting Agreement (Global SPAC Partners Co,), Underwriting Agreement (Global SPAC Partners Co,)
Lock-Up. Purchaser shall not, without the prior written consent of the managing underwriter, sell, dispose of, transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale, the Shares (a) Subject to Sections 7(b) and 7(cthe “Restricted Securities”), each NET Power Holder agrees with during the 180-day period following the date of the final prospectus relating to the Company’s Initial Public Offering (or such longer period, not to exceed 34 days after the expiration of the 180-day period, as the underwriters or the Company that it, he shall request in order to facilitate compliance with NASD Rule 2711 or she shall not Transfer NYSE Member Rule 472 or any Lock-up Shares of such NET Power Holder (if any and to the extent applicablesuccessor or similar rule or regulation) until the end of the applicable Lock-up Period (the “Lock-upUp Period”). For Purchaser agrees to execute and deliver such agreements as may be reasonably requested by the avoidance of doubtCompany or the managing underwriters which are consistent with the foregoing or which are necessary to give further effect thereto. In order to enforce the foregoing covenant, the LockCompany may impose stop-up transfer instructions with respect to Purchaser’s Restricted Securities until the end of such period. The underwriters of the Company’s stock are intended third-party beneficiaries of this Section 4(d) and shall have the right, power and authority to enforce the provisions hereof as CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[***]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. though they were a party hereto. The foregoing provisions of this Section 4(d) shall apply only to the Initial Public Offering, shall not apply to the sale of any Company Interestsshares to an underwriter pursuant to an underwriting agreement, warrants or other securities of and shall be applicable to the Purchaser only if all officers and directors are subject to the same restrictions and the Company obtains a similar agreement from all stockholders individually owning more than five percent (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise5%) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of outstanding Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities on a fully diluted basis. Any discretionary waiver or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any termination of the restrictions on Transfer under this Section 7 of any or under all of such agreements by the Sponsor Letter Agreement, as applicable, then Company or the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares underwriters shall apply pro rata to all stockholders subject to such release; and (ii) if any Price-Based Lock-up Shares agreements, based on the number of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationagreements.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 3 contracts
Samples: License Agreement (Neon Therapeutics, Inc.), License Agreement (Neon Therapeutics, Inc.), License Agreement (Neon Therapeutics, Inc.)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in In connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all any underwritten offering of the Company’s Stockholders having securities, each Investor and Permitted Holder of Registrable Securities agrees that upon request of the Company or the underwriters managing any underwritten offering of the Company’s securities, that it will (a) not offer, sell, contract to sell, loan, grant any option to purchase, make any short sale or otherwise dispose of, hedge or transfer any of the economic interest in (or offer, agree or commit to do any of the foregoing) any shares of Common Stock, or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to exchange their receive shares of Common Stock Stock, whether now owned or hereinafter acquired, owned directly (including any holding as a custodian) or with respect to which such Person has beneficial ownership within the rules and regulations of the Commission (other than those included by such Person in the offering in question, if any) without the prior written consent of the Company Interests exchangeable or such underwriters, as the case may be, for shares up to fourteen (14) days prior to, and during the ninety (90) day period following, the effective date of Common Stock in connection therewiththe registration statement for such underwritten offering, and (b) for cash, securities or other property subsequent enter into and be bound by such form of agreement with respect to the Closing Date.
(c) Notwithstanding foregoing as the provisions Company or such managing underwriter may reasonably request; provided that each executive officer and director of the Company also agrees to substantially similar restrictions. The restrictions set forth in this Section 7(a)4.7 shall terminate, with respect to an Investor and its Permitted Holders, when such Investor and its Permitted Holders own less than 7.5% of the retirement of shares of outstanding Common Stock, after giving effect to such Investor’s and its Permitted Holders’ Preferred Stock, Series C Preferred Stock and Class B Common Stock pursuant to Section 4.3(b) on an as converted basis using the Base Price on the date of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price request of the Class A Company or the underwriters mentioned above of in calculating the amount of outstanding Common Stock (as adjusted for stock splitsStock; provided that, stock dividendsunless the SPA is earlier terminated, reorganizations, recapitalizations and similar transactions) (no such termination shall be effective until the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as later of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Third Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares 90 days following completion of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor a Third Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationFinancing.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 3 contracts
Samples: Investor Rights Agreement (Usec Inc), Securities Purchase Agreement (Babcock & Wilcox Co), Securities Purchase Agreement (Usec Inc)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power The Holder hereby agrees with the Company that it, he or she shall they will not Transfer any the Lock-up Up Shares of such NET Power held by the Holder (if any and to the extent applicable) until the end as of the applicable Lock-up Period Effective Date, from the period beginning on the Effective Date and ending on, and including, the date that is six months following the Effective Date (the “Lock-upUp Term”). For The transfer restrictions set forth in this Agreement shall cease to apply commencing on the avoidance first calendar day immediately following the last day of doubt, the Lock-up shall not apply Up Term.
(b) Notwithstanding the foregoing restrictions on Transfer set forth in Section 2(a), the Holder may:
(i) Transfer Lock-Up Shares to any Company InterestsPermitted Transferee;
(ii) exercise any options, restricted stock units, warrants or other derivative securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of provided that the Holder shall otherwise comply with any warrants or otherwiserestrictions on Transfer applicable to the Shares underlying such securities; and
(iii) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of establish a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, Act during the Lock-Up Term for the Transfer of Shares (a “10b5-1 Plan”); provided that such plan does not provide parameters comply with the restrictions contained in Section 2(a) hereof during the Lock-Up Term; and
(iv) Transfer Lock-Up Shares to the Company; provided, however, that in the case of any Transfer or distribution pursuant to Section 2(b)(i), (x) in each case such Permitted Transferee must enter into a written agreement agreeing to be bound by this Agreement, including the restrictions on Transfer set forth in Section 2(a), and (y) such Permitted Transferee (other than a Permitted Transferee as defined in clause (ii) or (iii) thereof) agrees to promptly Transfer such Lock-Up Shares back to the Holder if such Permitted Transferee ceases to be a Permitted Transferee for any reason prior to the end of the Lock-Up Term.
(c) Notwithstanding anything to the contrary, the restrictions on Transfer set forth in Section 2(a) shall automatically terminate upon consummation of a Change of Control.
(d) The Holder acknowledges and agrees that any purported Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares violation of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect tonull and void ab initio, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, and the Company shall notify each NET Power not be required to register any such purported Transfer. If the Holder within two (2) business days effects or attempts to so effect a Transfer in violation of this Agreement, the occurrence Holder will be deemed to have committed a material breach of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating their obligations to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofhereunder.
Appears in 2 contracts
Samples: Lock Up and Voting Agreement (Hut 8 Corp.), Lock Up and Voting Agreement (Hut 8 Corp.)
Lock-Up. Employee shall not, directly or indirectly, sell, encumber ------- or in any other manner transfer (aor enter into an agreement to transfer) Subject to Sections 7(bMerger Shares (as defined below) and 7(cduring the period described in the following paragraph (the "Lock-Up Restriction"), each NET Power Holder except as set forth therein (and subject to compliance with applicable legal and all other requirements for transferring shares). The Lock-Up Restriction includes a prohibition on Employee, directly or indirectly, entering into any hedging, short sale or other transaction which could require Employee to transfer Merger Shares. Employee acknowledges that the Lock-Up Restriction shall apply notwithstanding the fact that Employee may have certain registration rights under that certain Registration Rights Agreement dated as of the date hereof by and among VSource and the shareholders of Online Transaction Technologies, Inc., and accordingly Employee acknowledges and agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of be entitled to exercise such NET Power Holder (if any and registration rights to the extent applicable) the Lock-Up Restriction is in effect. The Lock-Up Restriction shall be in effect until the end of the applicable Lock-up Period (sixth month following the “Lock-up”)first anniversary of the date hereof. For the avoidance of doubtHowever, the Lock-up Up Restriction shall not apply to any Company Interests, warrants or other securities automatically terminate if Employee is employed by VSource through the first 6 months of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Sharesdate hereof. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of The Lock-Up Restriction shall automatically terminate as to all Merger Shares during if prior to the end of the sixth month period (i) VSource terminates Employee without cause, or (ii) VSource merges into or consolidates with any corporation or other entity, or transfers all or substantially all of its assets. VSource may direct its transfer agent to decline to execute any transfer of Merger Shares which appears to contravene the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a)Restriction, and VSource and transfer agent shall not have any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) liability to any of person for declining to execute any such NET Power Holder’s Permitted Transferees; or (ii) in connection with transfer based on a liquidation, merger, stock exchange, reorganization, tender offer approved by good faith belief that the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during transfer contravenes the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third Restriction. Employee agrees that all Merger Shares shall be registered in his name during the term of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement Up Restriction and that VSource shall have the right to direct its transfer agent to place a restrictive legend on the contrarycertificates representing the Merger Shares, it is understood and agreed thatwhich legend will read substantially as follows: THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN AN EMPLOYMENT AGREEMENT DATED AS OF ______________, (i) if any Time-Based BETWEEN VSOURCE, INC. AND THE REGISTERED HOLDER. Upon a partial or complete termination of the Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter AgreementUp Restriction, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicableVSource, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or timesrequest of Employee, as direct its transfer agent to remove such legend from the other Time-Based certificates representing the Mergers Shares that have been released from the Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in Up Restriction. VSource shall bear the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any cost of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence removal of such amendment or modificationlegend.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: At Will Employment Agreement (Vsource Inc), At Will Employment Agreement (Vsource Inc)
Lock-Up. (a) Subject Other than pursuant to Sections 7(b) and 7(cthe LLC Agreement, no Special Holder (including any Founder Holder), each NET Power Holder agrees with the Company that itother Equityholder or CCNB1 Independent Director shall Transfer, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise make a public announcement of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment intention to effect such Transfer, of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of any Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactionsdefined below) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned or otherwise held by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) Person during the Lock-Up Period without restriction under this (as defined below); provided, that such prohibition shall not apply to Transfers permitted pursuant to Section 7, 5.2. The “Lock-Up Period” shall be (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares other than in excess respect of the NET Power Holders Price-Based Shares described BluJay Equityholders, the IVP Equityholders, the Sponsor, CC Capital and NBOKS) the period commencing on the Closing Date and ending on the date that is six (6) months following the Closing Date or, in the foregoing clause case of the BluJay Equityholders, the IVP Equityholders, the Sponsor, CC Capital and NBOKS, the period commencing on the Completion Date and ending on the date that is six (6) months following the Completion Date. The “Lock-Up Shares” means (i) (i.e.x) the Class A Common Stock, up to two-thirds Class B Common Stock, Class V Common Stock, Common Units and Restricted Common Units held by the Special Holders (other than the BluJay Equityholders), the Equityholders (other than the BluJay Equityholders) or the CCNB1 Independent Directors as of its NET Power Holders Price-Based Shares in the aggregateClosing Date and (y) without restriction under this Section 7the Class A Common Stock held by the BluJay Equityholders as of the Completion Date, and (iiiii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any shares of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein Class A Common Stock issued pursuant to the contrary, if, following the Closing, the trading share price on the principal LLC Agreement upon exchange on which such securities are then listed or quoted, which of Company Units held as of the date hereof is the NYSEClosing Date, along with an equal number of Class V Common Stock, for Class A Common Stock; provided however that (w) any 20 trading days within Equity Securities purchased by NBOKS or any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
Founder Holder (for Affiliate thereof) Notwithstanding anything in this Agreement pursuant to the contrary, it is understood and agreed thatForward Purchase Agreement or any other forward purchase agreement entered into with PubCo in connection with PubCo’s initial public offering, (ix) if any Time-Based Lock-up Shares Equity Securities purchased by NBOKS or any Affiliate of NBOKS in connection with that certain Backstop Agreement, by and between PubCo and NBOKS, dated as of October 14, 2020; (y) any NET Power Holder or Lock-up Shares Equity Securities issued pursuant to any Subscription Agreement (as defined in the Sponsor Letter AgreementBCA or the SPA) entered into with PubCo in connection with the entry into the BCA or the SPA (including any such agreement entered into by CC Capital or any of its Affiliates) and (z) any warrants to purchase Class A Common Stock or any Class A Common Stock underlying such warrants, shall not be “Sponsor Time-Based Lock-up Up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer ” under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Investor Rights Agreement (Temasek Holdings (Private) LTD), Investor Rights Agreement (E2open Parent Holdings, Inc.)
Lock-Up. (a) Subject Other than pursuant to Sections 7(b) and 7(cthe LLC Agreement, no Special Holder (including any Founder Holder), each NET Power Holder agrees with the Company that itother Equityholder or CCNB1 Independent Director shall Transfer, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise make a public announcement of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment intention to effect such Transfer, of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of any Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactionsdefined below) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned or otherwise held by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) Person during the Lock-Up Period without restriction under this (as defined below); provided, that such prohibition shall not apply to Transfers permitted pursuant to Section 75.2. The “Lock-Up Period” shall be the period commencing on the Closing Date and ending on the date that is six (6) months following the Closing Date. The “Lock-Up Shares” means (i) the Class A Common Stock, Class B Common Stock, Class V Common Stock, Common Units and Restricted Common Units held by the Special Holders, the Equityholders or the CCNB1 Independent Directors as of the Closing Date, and (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third shares of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein Class A Common Stock issued pursuant to the contrary, if, following the Closing, the trading share price on the principal LLC Agreement upon exchange on which such securities are then listed or quoted, which of Company Units held as of the date hereof is the NYSEClosing Date, along with an equal number of Class V Common Stock, for Class A Common Stock; provided however that (w) any 20 trading days within Equity Securities purchased by NBOKS or any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
Founder Holder (for Affiliate thereof) Notwithstanding anything in this Agreement pursuant to the contrary, it is understood and agreed thatForward Purchase Agreement or any other forward purchase agreement entered into with PubCo in connection with PubCo’s initial public offering, (ix) if any Time-Based Lock-up Shares Equity Securities purchased by NBOKS or any Affiliate of NBOKS in connection with that certain Backstop Agreement, by and between PubCo and NBOKS, dated as of October 14, 2020; (y) any NET Power Holder or Lock-up Shares Equity Securities issued pursuant to any Subscription Agreement (as defined in the Sponsor Letter AgreementBCA) entered into with PubCo in connection with the entry into the BCA (including any such agreement entered into by CC Capital or any of its Affiliates) and (z) any warrants to purchase Class A Common Stock or any Class A Common Stock underlying such warrants, shall not be “Sponsor Time-Based Lock-up Up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer ” under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Investor Rights Agreement (E2open Parent Holdings, Inc.), Business Combination Agreement (CC Neuberger Principal Holdings I)
Lock-Up. Agreement. -------------------
(a) Subject Each Holder agrees, if so requested by the Company or an underwriter of Common Stock or other securities of the Company, not to Sections 7(bsell, grant any option or right to buy or sell, or otherwise transfer or dispose in any manner (whether in privately-negotiated or open-market transactions) and 7(c), each NET Power of any Common Stock (or other securities) of the Company held by such Holder agrees during the 180-day period following the effective date of the registration statement filed under the Act in connection with the Company that itinitial public offering of the Common Stock, he or she provided that: (i) such agreement shall not Transfer any Lock-up Shares of such NET Power Holder (if any and apply only to the extent applicableinitial public offering of the Common Stock and (ii) all Holders, any holders of Common Stock whose securities are included in such registration statement, and all officers, directors and key employees of the Company shall also enter into, and be bound by, similar agreements. Such agreement shall be in writing and in a form satisfactory to the Company and such underwriter, and may be included in the underwriting agreement. The Company may impose stop-transfer instructions with respect to the securities subject to the foregoing restriction until the end of the applicable Lock180-up Period day period. No Holder shall be so restricted unless all shareholders are similarly and proportionally restricted.
(the “Lock-up”). For the avoidance b) Each Holder agrees that if, after its initial registered public offering of doubtCommon Stock, the Lock-up shall not apply Company proposes to offer any its Common Stock or other equity securities for sale to the public and:
(i) if such Holder is an "affiliate" of the Company Interests(e.g., warrants because a general partner of the Holder is a director of the Company) or otherwise holds beneficially or of record ten percent or more of the outstanding equity securities of the Company;
(ii) if so requested by the Company or an underwriter of Common Stock or other securities of the Company; and
(iii) if all other similarly situated "affiliates" and ten- percent beneficial holders are requested by the Company (whether acquired in the open marketand such underwriter to sign, directly from the Companyand actually do sign, upon exercise of any warrants or otherwise) other than the Locka lock-up Shares. Nothing agreement containing the restrictions described herein; then, such Holder will not sell, grant any option or right to buy or sell, or otherwise transfer or dispose in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and manner to the extent applicable) during the Lockpublic in open-up Period (i) to market transactions any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(bsecurities) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to Company held by such Holder during the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading90-day period commencing at least 15 days after following the Closing, exceeds (i) $12.00 per share, then each effective date of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during registration statement filed under the Lock-up Period without restriction under this Section 7 Act. Such agreement shall be in an amount up writing and in form and substance reasonably satisfactory to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the likeHolder, the “NET Power Holders PriceCompany and such underwriter. The Company may impose stop-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner transfer instructions with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect securities subject to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any foregoing restriction until the end of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification90-day period.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Diamond Technology Partners Inc), Stock Purchase Agreement (Diamond Technology Partners Inc)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder Stockholder Party agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder Stockholder Party (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder Stockholder Party or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder Stockholder Party (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power HolderStockholder Party’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), (i) to the extent applicable, any Company Interests or shares of Common Stock issued to any Stockholder Party upon exercise of any of such Stockholder Party’s warrants to purchase Company Interests or shares of Common Stock shall be deemed to be Company Interests or shares of Common Stock, as the case may be, Beneficially Owned by such Stockholder Party as of the Closing and such exercise shall not be deemed a Transfer for purposes of this Section 7 and (ii) the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) [●] of the Charter [Charter] shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding Notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSENew York Stock Exchange, for any 20 10 trading days within any 30 consecutive 15 trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 13.50 per share, then each of the NET Power Aria Holders, together with its their Permitted Transferees, may Transfer their Price-Based applicable Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder the Aria Holders and its their respective Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Closing Shares”) during the Lock-Up Period without restriction under this Section 7), (ii) $14.00 16.00 per share, then each NET Power Holderthe Aria Holders, together with its their Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based the Closing Shares in excess of the NET Power Holders Price-Based Closing Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based the Closing Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 19.00 per share, then the NET Power Aria Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up the Closing Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees Closing Shares under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Business Combination Agreement (Rice Acquisition Corp.), Business Combination Agreement (Rice Acquisition Corp.)
Lock-Up. (a) Subject to Sections 7(b) The Sponsor and 7(c), each NET Power Holder Insider agrees with the Company that it, he or she shall not Transfer any Lock-up Founder Shares of such NET Power Holder (if any and to the extent applicable) until the end earlier of (A) one year after the completion of the applicable Lock-up Period Business Combination and (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwiseB) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
Business Combination, (cx) Notwithstanding if the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale closing price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed equals or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing share (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading30-trading day period commencing at least six months 150 days after the Business Combination or (y) the date on which Pubco completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of ClosingPubco’s stockholders having the right to exchange their shares of Class A Common Stock for cash, exceeds $12.00 per share, then securities or other property (the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based “Founder Shares Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up SharesPeriod”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 the Private Placement Securities (and any shares of Class A Common Stock or any other securities issued or issuable upon the exercise of the Private Placement Securities) or any shares of Class A Common Stock purchased in connection with the Equity Financing (as such term is defined in the Business Combination Agreement) shall in no way limit any restrictions on or requirements relating be subject to the provisions of Section 3(b) below and shall not be subject to the Founder Shares Lock-up Period.
(b) The Sponsor and each Insider agrees that it, he or she shall not Transfer any Private Placement Securities (or any securities underlying the Private Placement Securities, including the shares of Common Stock and Private Placement Warrants included in the Private Placement Units and the shares of Common Stock issued or issuable upon the exercise of the Company Interests Beneficially Owned by Private Placement Warrants), until 30 days after the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise completion of a Business Combination (the “Private Placement Lock-up Period”, together with the Founder Shares Lock-up Period, the “Lock-up Periods”).
(c) Notwithstanding the provisions set forth in paragraphs 3(a) and 3(b), Transfers of the Founder Shares, Private Placement Securities, component securities of Private Placement Securities and shares of Class A Common Stock issued or issuable upon the exercise or conversion of the Private Placement Warrants or the Founder Shares and that are held by the Sponsor, any Insider or any of their permitted transferees (that have complied with this paragraph 3(c)), are permitted in the following circumstances:
(i) to Vistas’ officers or directors, any affiliate or family member of any of Vistas’ officers or directors or any affiliate of the Sponsor or to any member(s) of the Sponsor or any of their affiliates;
(ii) in the case of an individual, by gift to a member of such individual’s immediate family or to a trust, the beneficiary of which is a member of such individual’s immediate family, an affiliate of such individual or to a charitable organization;
(iii) in the case of an individual, by virtue of laws of descent and distribution upon death of such individual;
(iv) in the case of an individual, pursuant to a qualified domestic relations order;
(v) by private transfers or transfers made in connection with any contingent forward purchase agreement or similar arrangement or in connection with the consummation of the Business Combination at prices no greater than the price at which the shares or warrants were originally purchased;
(vi) by virtue of the laws of the State of Delaware or the Sponsor’s limited liability company agreement upon dissolution of the Sponsor;
(vii) in the event of Pubco’s liquidation, merger, capital stock exchange or other similar transaction which results in all of Pubco’s stockholders having the right to exchange their shares of common stock for cash, securities or other property subsequent to the completion of the Business Combination; provided, however, that in the case of clauses (i) through (v), these permitted transferees must enter into a written agreement with Vistas or Pubco, as applicable, agreeing to be bound by the transfer restrictions herein and the other restrictions contained in this Agreement or (including provisions relating to voting, the governing documents of the Company Trust Account and OpCo as of the date hereofliquidating distributions).
Appears in 2 contracts
Samples: Sponsor Agreement (Anghami Inc), Sponsor Agreement (Vistas Media Acquisition Co Inc.)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer Transfer, or make a public announcement of any intention to effect a Transfer, of any Lock-up Shares of such NET Power Up Securities Beneficially Owned or otherwise held by the Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period. Such prohibition shall not apply to Transfers permitted pursuant to Section 1.2.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer During the Lock-up Shares Up Period, any purported Transfer of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) Up Securities other than in accordance with this Agreement shall be null and void, and Company shall refuse to recognize any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including Transfer for any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Datepurpose.
(c) Notwithstanding The Holder acknowledges and agrees that, notwithstanding anything to the provisions set forth in Section 7(a)contrary herein, the retirement Company Capital Stock and the Equity Interests in the Company, as the case may be, Beneficially Owned by the Holder, shall remain subject to any restrictions on Transfer under applicable securities Laws of shares of Class B Common Stock pursuant to Section 4.3(b) any Governmental Entity, including all applicable holding periods under the Securities Act and other rules of the Charter shall not be deemed a Transfer for purposes of this Section 7SEC.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during During the Lock-Up Period without restriction under this Section Period, each certificate or book-entry position evidencing any Lock-Up Securities shall be marked with a legend in substantially the following form, in addition to any other applicable legends: “THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP AGREEMENT, DATED AS OF MARCH 7, 2024, BY AND AMONG THE ISSUER OF SUCH SECURITIES AND THE HOLDER OF THE SECURITIES (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional oneOR THE PREDECESSOR IN INTEREST TO THE SECURITIES). A COPY OF SUCH LOCK-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 each Holder shall in no way limit any restrictions on or requirements relating retain all of its rights as a stockholder of Company with respect to the Transfer Lock-Up Securities during the Lock-Up Period, including the right to vote any Lock-Up Securities that are entitled to vote. Company agrees to (i) instruct its transfer agent to remove the legend in clause (d) immediately above upon the expiration of the Company Interests Beneficially Owned Lock-Up Period and (ii) if requested by the NET Power Holders and their respective Permitted Transferees transfer agent, cause its legal counsel to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofsubclause (i).
Appears in 2 contracts
Samples: Lock Up Agreement (Binah Capital Group, Inc.), Lock Up Agreement (Binah Capital Group, Inc.)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer Transfer, or make a public announcement of any intention to effect a Transfer, of any Lock-up Shares of such NET Power Up Securities Beneficially Owned or otherwise held by the Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period. Such prohibition shall not apply to Transfers permitted pursuant to Section 1.2.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer During the Lock-up Shares Up Period, any purported Transfer of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) Up Securities other than in accordance with this Agreement shall be null and void, and PubCo shall refuse to recognize any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including Transfer for any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Datepurpose.
(c) Notwithstanding The Holder acknowledges and agrees that, notwithstanding anything to the provisions set forth in Section 7(a)contrary herein, the retirement PubCo Capital Stock and the Equity Interests in the Company, as the case may be, Beneficially Owned by the Holder, shall remain subject to any restrictions on Transfer under applicable securities Laws of shares of Class B Common Stock pursuant to Section 4.3(b) any Governmental Entity, including all applicable holding periods under the Securities Act and other rules of the Charter shall not be deemed a Transfer for purposes of this Section 7SEC, and under the Company A&R LLCA.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during During the Lock-Up Period without restriction under this Section 7Period, each certificate or book-entry position evidencing any Lock-Up Securities shall be marked with a legend in substantially the following form, in addition to any other applicable legends: “THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP AGREEMENT, DATED AS OF [●] 2021, BY AND AMONG THE ISSUER OF SUCH SECURITIES AND THE HOLDER OF THE SECURITIES (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional oneOR THE PREDECESSOR IN INTEREST TO THE SECURITIES). A COPY OF SUCH LOCK-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 each Holder shall in no way limit any restrictions on or requirements relating retain all of its rights as a stockholder of PubCo with respect to the Transfer Lock-Up Securities during the Lock-Up Period, including the right to vote any Lock-Up Securities that are entitled to vote. PubCo agrees to (i) instruct its transfer agent to remove the legend in clause (d) immediately above upon the expiration of the Company Interests Beneficially Owned Lock-Up Period and (ii) if requested by the NET Power Holders and their respective Permitted Transferees transfer agent, cause its legal counsel to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofsubclause (i).
Appears in 2 contracts
Samples: Business Combination Agreement (MDH Acquisition Corp.), Lock Up Agreement (MDH Acquisition Corp.)
Lock-Up. (a) Subject to Sections 7(b) The Investor shall not, and 7(c)shall procure that each Investor Affiliate shall not, each NET Power Holder agrees with without the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end prior written consent of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open marketCorporation, directly from the Companyor indirectly, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.Transfer:
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) for the period commencing on the Closing Date until the earlier of (1) the date that is one month following the issuance of the Common Shares pursuant to the terms of the Subscription Receipts and (2) the date that is 12 months following the Closing Date, (A) any of such NET Power Holder’s Permitted Transfereesthe Subscribed Securities and (B) following the issuance of Common Shares pursuant to the terms of the Subscription Receipts, that number of Common Shares equal to the number of Placement Underlying Shares acquired pursuant to the Subscription Receipts; or or
(ii) in connection with a liquidationfor the period commencing on the date hereof and ending on the earliest of (1) the date of completion of the vote of shareholders of the Target, mergerif applicable, stock exchangerelated to the Acquisition, reorganization(2) the date on which the Takeover Offer, tender offer approved by the Board if applicable, becomes or a duly authorized committee thereof or other similar transaction which results is declared unconditional in all respects and (3) the date of termination of the Company’s Stockholders having Acquisition, the right to exchange their Common Shares, the ordinary shares of Common Stock (including any Company Interests exchangeable for Tryg or the ordinary shares of the Target it owns as at the date hereof; provided, however, that, notwithstanding the foregoing, the lockup in this paragraph (a)(ii) with respect to Common Stock Shares only shall end no later than the date of the earliest of (A) the date of the earliest of the events in connection therewiththe foregoing clauses (1) for cash, securities or other property subsequent to through (3) and (B) 120 days following the Closing Date.
(cb) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the The restrictions on Transfer under this Section 7 contained in paragraph (a)(ii) shall not apply to Transfers where the equity securities are managed by arms-length parties pursuant to a discretionary mandate or under where the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any purpose of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreementis to maintain a portfolio of investments which tracks a stock market index for pure investment purposes, as applicable, then the Price-Based Lock-up Shares of provided in each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event case that the Sponsor Letter Agreement is amended Transfer of equity securities (other than Common Shares) shall have been consented to by or otherwise modified conducted in a manner consistent with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any requirements of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, UK Panel on Takeovers and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationMergers.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Subscription Agreement, Subscription Agreement
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with From the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) Effective Time until the end day immediately following the six month anniversary of the applicable Lock-up Period Closing Date (the “Lock-upUp Period”), each Shareholder shall not, and, with respect to the shares of Parent Common Stock issued to Value pursuant to the Merger Agreement, each of JM and Sr. For shall cause Value not to (i) Transfer, directly or indirectly, any of the avoidance shares of doubtParent Common Stock issued to such Shareholder pursuant to the Merger Agreement (all such shares, the Lock“Locked-up shall not apply to Up Shares”) or (ii) enter into any Company Interests, warrants swap or other securities arrangement that transfers to another, in whole or in part, any of the Company (whether acquired in the open market, directly from the Company, upon exercise economic consequences of ownership of any warrants or otherwise) other than of the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of LockLocked-Up Shares Shares, except, in each case, that (A) following the one month anniversary of the Closing Date and during the remaining portion of the Lock-Up Period, the Shareholders may Transfer, in the aggregate, up to twenty-five percent (25%) of the Locked-Up Shares, (B) each Shareholder may Transfer Shares to a Permitted Transferee and (C) JM may pledge, as security for a margin loan, any Locked-Up Shares held of record by JM (it being understood that no other Shareholder Party shall pledge any shares of Parent Common Stock beneficially owned by such Shareholder Party); provided that as a condition to such Transfer under clause (B), such Permitted Transferee shall be required to execute a joinder to this Agreement; provided, further, that such Transferring Shareholder shall remain jointly and severally liable for any breaches by any such Permitted Transferee of the terms hereof.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder Each stock certificate or its Permitted Transferees may Transfer the Lockbook-up Shares entry notation evidencing Value’s ownership of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Parent Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cashmust bear the following legend: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR THIS BOOK-ENTRY NOTATION ARE SUBJECT TO THE TERMS AND CONDITIONS OF A VOTING AND SUPPORT AGREEMENT, securities or other property subsequent to the Closing DateDATED AS OF AUGUST 9, 2019, BY AND AMONG THE OWNER OF SUCH SECURITIES, OCEANFIRST FINANCIAL CORP. AND CERTAIN OTHER PARTIES THERETO AND MAY ONLY BE SOLD OR TRANSFERRED IN ACCORDANCE WITH THE TERMS THEREOF.”
(c) Notwithstanding Each Shareholder hereby agrees and consents to the provisions set forth in Section 7(a), entry of stop transfer instructions with Parent’s transfer agent and registrar against the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) transfer of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to PriceLocked-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned held by such NET Power Holder and its Permitted Transferees, Shareholder except in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under compliance with this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7Agreement.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Voting and Support Agreement (Oceanfirst Financial Corp), Voting and Support Agreement
Lock-Up. (a) Subject to Sections 7(bSection 42(b) below, the holders (the “Lock-Up Holders”) of any shares of common stock, par value $0.0001 per share, of the corporation issued to the Pre-Closing Holders (as defined in the Merger Agreement) in connection with the transactions contemplated by that certain Agreement and 7(cPlan of Merger entered into by and among (1) the corporation, (2) Supernova Merger Sub, Inc., a Delaware corporation and direct, wholly owned subsidiary of the corporation, (3) Supernova Romeo Merger Sub Inc., a Delaware limited liability company and direct, wholly owned subsidiary of the corporation and (4) Rigetti Holdings, Inc., a Delaware corporation (as the same may be amended, amended and restated, restated, supplemented or otherwise modified from time to time the “Merger Agreement”), each NET Power Holder agrees with as such shares of common stock may be subsequently designated as Common Stock (as defined in the Company that itCertificate of Incorporation), he or she shall may not Transfer any Lock-up Up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Up Period (the “Lock-upUp”).
(b) Notwithstanding the provisions set forth in Section 42(a) above, the Lock-Up Holders may, so long as such transferee pursuant to a Transfer in accordance with any of clauses (i)-(iii) agrees to be bound by the provisions hereof until the end of the Lock-Up Period in form and substance reasonably satisfactory to the independent members of the Board of Directors, Transfer the Lock-Up Shares
19. For during the Lock-Up Period (i) as a bona fide gift or charitable contribution; (ii) to a trust, or other entity formed for estate planning purposes for the primary benefit of the spouse, domestic partner, parent, sibling, child or grandchild of such Lock-Up Holder or any other person with whom such Lock-Up Holder has a relationship by blood, marriage or adoption not more remote than first cousin; (iii) by will or intestate succession upon the death of the Lock-Up Holder; (iv) pursuant to a qualified domestic order, court order or in connection with a divorce settlement; (v) if such Lock-Up Holder is a corporation, partnership (whether general, limited or otherwise), limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that controls, is controlled by or is under common control or management with the Lock-Up Holder, or (B) to partners, limited liability company members or stockholders of the Lock-Up Holder, including, for the avoidance of doubt, where the Lock-up shall not apply Up Holder is a partnership, to its general partner or a successor partnership or fund, or any Company Interestsother funds managed by such partnership; (C) by virtue of the laws of the state or jurisdiction of the entity’s organization and the entity’s organizational documents upon dissolution of the entity; (vi) if such Lock-Up Holder is a trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust; (vii) pursuant to transactions in the event of completion of a liquidation, merger, consolidation, stock exchange, reorganization, tender offer or other similar transaction which results in all of the corporation’s securityholders having the right to exchange their shares of Common Stock for cash, securities or other property; (viii) to the corporation in connection with the repurchase of such Lock-Up Holder’s shares in connection with the termination of the Lock-Up Holder’s employment with the corporation pursuant to contractual agreements with the corporation; (ix) to satisfy tax withholding obligations in connection with the exercise of options or warrants to purchase shares of Common Stock of the corporation or the vesting of stock-based awards; (x) in payment on a “net exercise” or “cashless” basis of the exercise or purchase price with respect to the exercise of options or warrants to purchase shares of Common Stock of the corporation; (xi) pursuant to transactions relating to Common Stock or other securities of convertible into or exercisable or exchangeable for Common Stock acquired in open market transactions after the Company Closing (as defined in the Merger Agreement), provided that no such transaction is required to be, or is, publicly announced (whether acquired in the open marketon Form 4, directly from the Company, upon exercise of any warrants Form 5 or otherwise) , other than a required filing on Schedule 13F, 13G or 13G/A) during the Lock-up SharesUp Period, or (xii) transfers of any shares of Common Stock or other securities acquired in connection with the Subscription Agreements (as defined in the Merger Agreement) or issued in exchange for, or on conversion or exercise of, any securities issued in connection with the Subscription Agreements. Nothing Notwithstanding the provisions set forth in this Section 7 shall prohibit a NET Power Holder from 42(a) above, the establishment of Lock-Up Holders may also establish a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act1934 Act during the Lock-Up Period; provided, provided however, that (A) such plan does shall not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
Period and (bB) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder no public announcement or its Permitted Transferees may Transfer the Lock-up Shares of filing shall be made voluntarily regarding such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) plan during the Lock-Up Period without restriction under this Section 7Period, (ii) $14.00 per shareor if any public announcement is required of or voluntarily made by or on behalf of the Lock-Up Holder or the corporation regarding such plan, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein such announcement or filing shall include a statement to the contrary, if, following the Closing, the trading share price on the principal exchange on which effect that no Transfer may be made under such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares plan during the Lock-up Period without restriction under this Section 7Up Period.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Merger Agreement (Supernova Partners Acquisition Co II, Ltd.), Merger Agreement (Supernova Partners Acquisition Co II, Ltd.)
Lock-Up. (a) Subject to Sections 7(b) Each Seller agrees that commencing on the Closing Date and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) continuing until the end day that is 180 days after the Closing Date, the Seller will not, without the prior written consent of Buyer, directly or indirectly: (1) offer, sell, transfer, pledge, contract to sell, grant any option to purchase, make any short sale, hypothecate, pledge, transfer or otherwise dispose of or monetize the applicable Lock-up Period economic value of any Multiple Voting Shares received by such Seller (the “LockLocked-upUp Securities”). For ) pursuant to the avoidance of doubt, the Lock-up shall not apply terms hereof; or (2) announce any intention to do any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Actforegoing, provided that such plan does not provide for the Transfer Parties acknowledge and agree that a Seller may make a distribution of Lockthe Locked-Up Shares during the Lock-Up PeriodSecurities to its members or shareholders pursuant to Section 6.08(b).
(b) Notwithstanding the foregoing, the Parties acknowledge and agree that Sellers which are entities may distribute the Locked-Up Securities to certain of their members or shareholders following the Closing. In the event that any Seller does so distribute such Locked-Up Securities, such Seller, as a condition thereof, shall cause such recipient of the Locked-Up Securities to agree to be bound by the provisions set forth of this Section 6.08 in Section 7(a)a form acceptable to Buyer, any NET Power Holder or acting reasonably, and shall deliver it to Buyer for its Permitted Transferees may Transfer the Lock-up Shares acceptance prior to such distribution occurring. Upon Buyer’s confirmation of receipt and acceptance of such NET Power Holder (if any and to agreement, the extent applicable) during applicable Seller may complete the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Datedistribution as contemplated herein.
(c) Notwithstanding the provisions The restrictions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to 6.08(a) and Section 4.3(b6.08(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, apply: (i) if any Time-Based Lock-up Shares Buyer receives an offer, made to all securityholders of any NET Power Holder Buyer, which has not been withdrawn, to enter into a transaction or Lock-up Shares (as defined arrangement, or proposed transaction or arrangement, pursuant to which, if entered into or completed substantially in the Sponsor Letter Agreementaccordance with its terms, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement)a party could, are directly or indirectly acquire an interest (by waiverincluding an economic interest) in, amendment or otherwise) released from any become the holder of, 100% of the restrictions on Transfer under total number of Buyer Shares, whether by way of takeover offer, scheme of arrangement, shareholder approved acquisition, capital reduction, share buyback, securities issue, reverse takeover, dual-listed company structure or other synthetic merger, transaction or arrangement; (ii) in respect of transfers of Locked-Up Securities to affiliates of the Seller, any spouse, parent, child, or grandchild of the undersigned, any company, trust or other entity owned by or maintained for the benefit of the Seller, but solely to the extent that such transferee agrees to be bound by the terms of this Section 7 6.08; (iii) in respect of transfers of Locked-Up Securities to a charitable organization pursuant to a bona fide gift; (iv) if the undersigned is an individual, in connection with estate planning of the undersigned; or under (v) in respect of pledges of the Sponsor Letter AgreementLocked-Up Securities to a bank or other financial institution for the purpose of giving collateral for a debt made in good faith, but solely to the extent that such bank or financial institution agrees in writing to be bound by the terms of this Section 6.08 for the duration of the period set out in Section 6.08(a) or Section 6.08(b), as applicable.
6. Except as amended hereby, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any provisions of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationremain in full force and effect.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Assignment and Assumption Agreement (Harvest Health & Recreation Inc.), Share Exchange Agreement
Lock-Up. (a) Subject Sponsor and Xxxxx agree not to Sections 7(b) transfer, assign or sell any of their respective Acquiror Class A Common Stock, Acquiror Class V Common Stock, OpCo Class A Units or OpCo Class B Units (or any shares of New PubCo Class A Common Stock issuable to Sponsor and 7(cXxxxx in connection with the Transactions), each NET Power Holder agrees with as applicable, until one year after the Company that itClosing or earlier if, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and subsequent to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubtClosing, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last reported sale price of the New PubCo Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed equals or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing share (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading30-trading day period commencing at least six months 150 days after the consummation of the Closing or (ii) New PubCo consummates a subsequent liquidation, merger, stock exchange or other similar transaction that results in all of New PubCo’s stockholders having the right to exchange their shares of New PubCo Class A Common Stock for cash, securities or other property (the “Lock-up” and such date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based “Lock-up Shares during the Lock-up Period without restriction under this Section 7Date”).
(fb) Subject to certain limited exceptions, Xxxxxxx agrees not to transfer, assign or sell any Acquiror Private Placement Warrants or New PubCo Warrants (or Acquiror Class A Common Stock or New PubCo Common Stock underlying such warrants) held by Sponsor, until 30 days after the Closing.
(c) Notwithstanding anything the provisions set forth in this Agreement to the contrary, it is understood Sections 4(a) and agreed that, 4(b):
(i) if any Time-Based Lock-up Shares Transfers of any NET Power Holder or Lock-up Shares (as defined in the Founder Shares, New PubCo Class A Common Stock, Acquiror Private Placement Warrants, New PubCo Warrants and shares of New PubCo Class A Common Stock underlying the such warrants and that are held by the Sponsor or any of its permitted transferees (that have complied with this Section 4(c)(i)) are permitted following the Closing, in accordance with paragraph 7(c) of that certain Letter Agreement, dated November 23, 2021, among the Acquiror, its officers and directors and Sponsor (“Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Acquiror Letter Agreement”), are .
(ii) Transfers of Acquiror Private Placement Warrants by Sponsor to any directly or indirectly wholly owned subsidiary or any affiliate of Sponsor (any such person, a “Permitted Transferee”) are permitted prior to the Closing, provided that such Permitted Transferee executes a joinder to this Agreement agreeing to be bound by waiver, amendment or otherwise) released from any the provisions of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise Agreement in writing, also be released in a proportionate manner, and at the same time or times, manner as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and any such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationtransferred Acquiror Private Placement Warrants.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Sponsor Agreement (Beard Energy Transition Acquisition Corp.), Sponsor Agreement (Beard Energy Transition Acquisition Corp.)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during During the Lock-Up Period (as defined below), the ------- Stockholders agree that they will not, without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess the prior written consent of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e.Parent, up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed directly or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed thatindirectly, (i) if offer, pledge, sell, sell short, contract to sell, sell any Time-Based option or contract to purchase, purchase any option or contract to sell, grant any option, right to warrant for the sale of, or otherwise dispose of or transfer any shares of Reorganization Common Stock or any shares of the Parent Common Stock issuable upon exercise of Parent Options (as defined in Section 1.6 below) (all of the foregoing shares being, collectively, the "Lock-up Shares of Up Shares"), or file any NET Power Holder or registration statement under the Securities Act, -------------- with respect to any Lock-up Up Shares, or (ii) enter into any swap or any other agreement or hedging arrangement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of Lock- Up Shares, whether any such swap or transaction is to be settled by delivery of Parent Common Stock or other securities, in cash or otherwise provided, however, that, other than with respect to shares of Parent Common Stock constituting any part of the Escrow Shares (as defined in the Sponsor Letter AgreementSection 5A.7(b) below), “Sponsor Time-Based a Stockholder may (i) transfer Lock-up Shares”Up Shares to such Stockholder's spouse or lineal descendant (natural or adopted) or an executor, administrator or testamentary trustee (in their capacity as such) of any Sponsor Party such Stockholder or to a trust the beneficiaries of which include only such Stockholder and his or her spouse or lineal descendants (natural or adopted); provided, however, it shall be a -------- ------- condition precedent to such transfer that the transferee agree in a writing reasonably satisfactory to the Parent to be bound by the terms of this Section 1.3(c), (ii) purchase at its own expense one or several European style put options, at exercise prices not to exceed 80% of the then current market value and with expiration dates not earlier than the first anniversary of the Effective Time, (iii) sell at their own expense one or several European style call options at exercise prices no less than 120% of the then current market value and with expiration dates not earlier than the first anniversary of the Effective Time, and (iv) pledge shares of Parent Common Stock as defined security for loans so long as the pledgee agrees in a writing reasonably satisfactory to the Parent that (A) such shares in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any hands of the restrictions on Transfer under pledgee remain subject to the provisions of this Section 7 or 1.3(c) and (B) are restricted securities under the Sponsor Letter Agreement, as applicable, then the Time-Based applicable federal securities laws. The "Lock-up Shares Up Period" shall be for a period beginning on the Closing Date and (i) for -------------- 15% of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at of the same time or times, as the other Time-Based Stockholders' Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; Up Shares, ending on the date that is 180 days following the Closing Date, and (ii) if any Price-Based for 85% of each of the Stockholders' Lock-up Up Shares, ending on the date that is one (1) year following the Closing Date. Nothing contained in this Section 1.3(c) shall prevent the Parent and the holders of the Preferred Stock Consideration Shares of any NET Power Holder or Extended Lockfrom entering into a different lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner agreement with respect to the Sponsor Time-Based Lockshares of Parent Common Stock delivered to such holders pursuant to Section 1.2(b) above, in which case the provisions of this Section 1.3(c) shall be deemed modified by such different lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any such holders and such shares of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationParent Common Stock only.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Firstamerica Automotive Inc /De/), Agreement and Plan of Merger and Reorganization (Price Thomas A)
Lock-Up. (a) Subject to Sections 7(b) and 7(c)Seller hereby agrees that it will not, each NET Power Holder agrees with without the Company that itprior written consent of Purchaser, he or she which shall not Transfer be unreasonably withheld, during the period of 18 months commencing on the Closing Date(A) lend, offer, pledge, sell, contract to sell, sell any Lock-up Shares option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of such NET Power Holder (if any and Common Stock held immediately prior to the extent applicable) until the end effectiveness of the applicable Lock-up Period registration statement for the offering or (B) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the “Lock-up”)economic consequences of ownership of any shares of Common Stock, whether any such transaction described in clause (A) or clause (B) above is to be settled by delivery of shares of Common Stock, in cash or otherwise. For the avoidance The foregoing provisions of doubt, the Lock-up this Section 2.06(b)(iii) shall not apply to the sale of any Company Interestsshares of Common Stock to an underwriter pursuant to an underwriting agreement and shall only be applicable to Seller if all officers, warrants or other securities directors and holders of more than one percent (1%) of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their outstanding shares of Common Stock (including after giving effect to the conversion of all Convertible Securities) enter into similar agreements. The underwriters in connection with the offering are intended third party beneficiaries of this Section 2.06(b)(iii) and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Seller further agrees to execute such agreements as may be reasonably requested by Purchaser or any Company Interests exchangeable for underwriter that are consistent with this Section 2.06(b)(iii) or that are necessary to give further effect hereto. In order to enforce the covenants set forth in this Section 2.05(b)(iii), Purchaser may impose stop-transfer instructions with respect to the shares of Common Stock in connection therewith) for cash, securities or other property subsequent to held by Seller until the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence end of such amendment or modificationrestricted period.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Sub License, License and Asset Purchase Agreement (Prima BioMed LTD), Sub License, License and Asset Purchase Agreement (Sydys Corp)
Lock-Up. (a) Subject to Sections 7(b) The Sponsor and 7(c), each NET Power Holder Insider agrees with the Company that it, he or she shall not Transfer any Lock-up Founder Shares of such NET Power Holder (if any and to the extent applicable) until the end earlier of (A) one year after the completion of the applicable Lock-up Period Business Combination and (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwiseB) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
Business Combination, (cx) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, if the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed equals or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing share (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading30-trading day period commencing at least six months 150 days after the Business Combination or (y) the date on which Newco completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of ClosingNewco’s stockholders having the right to exchange their shares of Class A Common Stock for cash, exceeds $12.00 per sharesecurities or other property (the “Founder Shares Lock-up Period”).
(b) The Sponsor and each Insider agrees that it, then he or she shall not Transfer any Private Placement Warrants (or any shares of Class A Common Stock issued or issuable upon the NET Power Holdersexercise of the Private Placement Warrants), until 30 days after the completion of the Business Combination (the “Private Placement Warrants Lock-up Period” and, together with their Permitted Transfereesthe Founder Shares Lock-up Period, may Transfer the “Lock-up Periods”).
(c) Notwithstanding the provisions set forth in paragraphs 3(a) and 3(b), Transfers of the Founder Shares, Private Placement Warrants and shares of Class A Common Stock issued or issuable upon the exercise or conversion of the Private Placement Warrants, in each case, that are held by the Sponsor, any Insider or any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under permitted transferees (that have complied with this Section 7.
(f) Notwithstanding anything in this Agreement to the contraryparagraph 3(c)), it is understood and agreed that, are permitted (i) if to SPAC’s officers or directors, any Time-Based Lock-up Shares affiliate or family member of any NET Power Holder of SPAC’s officers or Lock-up Shares directors or any affiliate of the Sponsor or to any member(s) of the Sponsor or any of their affiliates; (as defined ii) in the Sponsor Letter Agreementcase of an individual, “Sponsor Time-Based Lock-up Shares”by gift to a member of such individual’s immediate family or to a trust, the beneficiary of which is a member of such individual’s immediate family, an affiliate of such individual or to a charitable organization; (iii) of any Sponsor Party (as defined in the Sponsor Letter Agreementcase of an individual, by virtue of laws of descent and distribution upon death of such individual; (iv) in the case of an individual, pursuant to a qualified domestic relations order; (v) by private transfers or transfers made in connection with any contingent forward purchase agreement or similar arrangement or in connection with the consummation of the Business Combination at prices no greater than the price at which the shares or warrants were originally purchased; (vi) by virtue of the laws of the State of Delaware or the Sponsor’s limited liability company agreement upon dissolution of the Sponsor, (vii) in the event of Newco’s liquidation, merger, capital stock exchange or other similar transaction which results in all of Newco’s stockholders having the right to exchange their shares of common stock for cash, securities or other property subsequent to the completion of the Business Combination; provided, however, that in the case of clauses (i) through (v), are directly these permitted transferees must enter into a written agreement with SPAC or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter AgreementNewco, as applicable, then agreeing to be bound by the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, transfer restrictions herein and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth contained in this Agreement or (including provisions relating to voting, the governing documents of the Company Trust Account and OpCo as of the date hereofliquidating distributions).
Appears in 2 contracts
Samples: Merger Agreement (FAST Acquisition Corp.), Sponsor Agreement (FAST Acquisition Corp.)
Lock-Up. Each of the Holders agrees that he, she or it will not, during (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until prohibited by the end terms of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, this Section 8) the Lock-up shall not apply Period, (i) lend, offer, sell, contract to sell, sell any Company Interestsoption or contract to purchase, warrants purchase any option or contract to sell, grant any option, right, or warrant to purchase, or otherwise transfer or dispose of, in each case whether effected directly or indirectly, any Registrable Securities held by such Holder; (ii) enter into any swap or other securities arrangement that transfers to another, in whole or in part, any of the Company economic consequences of ownership of such Registrable Securities, whether any such transaction described in clause (whether acquired i) or (ii) above is to be settled by delivery of Registrable Securities or other securities, in the open marketcash, directly from the Company, upon exercise of any warrants or otherwise; or (iii) other than publicly announce the Lock-up Shares. Nothing intention to effect any of the transactions covered in this Section 7 shall prohibit clause (i) and (ii) above; provided, that a NET Power Holder from the establishment of may enter into a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that Act for the transfer of Registrable Securities so long as such plan does not provide for the Transfer transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) Registrable Securities during the Lock-up Period Period; provided, further, that nothing herein shall prohibit any Holder from (iA) to pledging any of such NET Power Holder’s Permitted Transferees; or (ii) Registrable Securities in connection with such Person’s entry into a credit facility or any other bona fide borrowing or similar lending arrangement, which shall include margin loans (provided, that for the avoidance of doubt, any pledgee who receives Common Stock following the exercise of remedies shall not be subject to the restrictions set forth in this Section 8), (B) transferring any Registrable Securities as a distribution or transfer to general partners, limited partners, members or stockholders of any Holder, or to any corporation, partnership, limited liability company, investment fund or other entity which controls or manages or is controlled or managed by any such Holder, or to any Affiliate under common control or management with any such Holder, (C) transferring any Registrable Securities in connection with the completion of a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof exchange or other similar transaction which that results in all of the Company’s Stockholders securityholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent property, (D) electing to dispose of Registrable Securities pursuant to a block trade with reasonably expected gross proceeds of at least $20 million from such block trade (a “Block Trade”) provided, that the recipient of the Registrable Securities pursuant to such Block Trade agrees to be bound in writing by the restrictions in this Section 8, (E) electing to exercise his or her rights pursuant to Section 2(c) to include Registrable Securities in any Piggyback Registration or Underwritten Piggyback Offering, (F) (x) transferring Registrable Securities pursuant to a bona fide third-party tender offer for shares of the Company’s capital stock made to all Holders of the Company’s securities or pursuant to a merger, consolidation or other similar transaction approved by the Board of the Company the result of which is that any person (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, other than the Company, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of more than 50% of the total voting power of the voting stock of the Company and (y) entering into any lockup, voting or similar agreement pursuant to which the Holder may agree to transfer, sell, tender or otherwise dispose of shares of Common Stock or such other securities in connection with a transaction described in the immediately foregoing clause (x) above (provided that, in the event that such change of control transaction is not completed, any Registrable Securities shall remain subject to the Closing Date.
restrictions contained in this Section 8), or (cG) Notwithstanding transferring any Registrable Securities by operation of law or pursuant to a final order of a court or regulatory agency; provided, further, that, in the provisions case of the foregoing clauses (A) through (C), (1) each such transferee agrees to be bound in writing by the restrictions set forth in this Section 7(a)8, the retirement of shares of Class B Common Stock pursuant to Section 4.3(b(2) of the Charter any such transfer shall not involve a disposition for value and (3) no public filing or public disclosure shall be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed required or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares voluntarily made during the Lock-up Period without restriction in connection with any such transfer (other than required filings under Sections 13(d) or 13(g) or Section 16 of the Exchange Act). For purposes of this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like8, the term “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of Period” shall mean the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price period beginning on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is and ending on the NYSE, for any 20 trading days within any 30 consecutive trading-90th day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7hereafter.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Atlas Energy Solutions Inc.), Merger Agreement (Atlas Energy Solutions Inc.)
Lock-Up. In connection with the first (aand, for the avoidance of doubt, only the first) Subject to Sections 7(b) public/underwritten offering (regardless of whether such offering is a primary or secondary offering and 7(cincluding an Underwritten Shelf Takedown), each NET Power Qualified Holder agrees with that it shall not, during the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to 60 days after the extent applicable) until the end of the applicable Lock-up Period pricing (the “Lock-upUp Period”), directly or indirectly, offer, pledge, assign, encumber, announce the intention to sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, or otherwise transfer or dispose of any of their Acquired Equity Securities, Granted Equity Securities or Equity Securities issued to such Qualified Holder in connection with the Structuring Fee to any Person; provided, however, that the Lock-Up Period shall not apply to the following: (i) the Equity Securities issued to a Commitment Party in exchange for such party’s Unsecured Notes under the Plan (i.e., the 1145 exempt Equity Securities); (ii) resales of a maximum of 15% of the applicable Commitment Party’s Equity Securities as of the Closing Date pursuant to the Resale Registration Statement; (iii) a tender offer for the Equity Securities approved by the Board of Directors of the Issuer; (iv) sales to the Issuer pursuant to an authorized share repurchase program in accordance with Rule 10b5-1 under the Exchange Act; (v) Registrable Securities included in the Underwritten Shelf Takedown; (vi) transfers of Equity Securities between affiliate entities of a Commitment Party; or (vii) sales of Equity Securities pursuant to such registered offering. For the avoidance of doubt, (a) the Lock-up Up Period shall not apply to any Company Interests, warrants Equity Securities sold under one or other securities of the Company (whether acquired in the open market, directly more exemptions from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated registration under the Exchange Securities Act, provided that such plan does not provide for but shall apply to sales on the Transfer of Lock-Up Shares during the Lock-Up Period.
Oslo Stock Exchange and (b) Notwithstanding before the provisions set forth in Section 7(a)commencement of, any NET Power Holder and after the termination or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a)expiration of, the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter Lockup Period, there shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) no restrictions on the principal exchange on which such securities are then listed or quoted, which as ability of any Qualified Holder to resell its Registrable Securities through the date hereof is the NYSE, for any 20 trading days within any 30 consecutive tradingResale Registration Statement in non-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the underwritten offerings. The Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer be extended for up to an additional one-third 30 days (for an aggregate of its NET Power Holders Price-Based Shares in excess 90 days), at the reasonable request of the NET Power Holders Pricemanaging underwriters/ lead book-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7runner/ manager.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Investment Agreement (Seadrill LTD), Investment Agreement (North Atlantic Drilling Ltd.)
Lock-Up. (a) Subject to Sections 7(b) The Investor shall not, and 7(c)shall procure that each Investor Affiliate shall not, each NET Power Holder agrees with without the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end prior written consent of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open marketCorporation, directly from the Companyor indirectly, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.Transfer:
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) for the period commencing on the Closing Date until the earlier of (1) the date that is one month following the issuance of the Common Shares pursuant to the terms of the Subscription Receipts and (2) the date that is 12 months following the Closing Date, (A) any of such NET Power Holder’s Permitted Transfereesthe Subscribed Securities and (B) following the issuance of Common Shares pursuant to the terms of the Subscription Receipts, that number of Common Shares equal to the number of Placement Underlying Shares acquired pursuant to the Subscription Receipts; or or
(ii) in connection with a liquidationfor the period commencing on the date hereof and ending on the earliest of (1) the date of completion of the vote of shareholders of the Target, mergerif applicable, stock exchangerelated to the Acquisition, reorganization(2) the date on which the Takeover Offer, tender offer approved by the Board if applicable, becomes or a duly authorized committee thereof or other similar transaction which results is declared unconditional in all respects and (3) the date of termination of the Company’s Stockholders having Acquisition, the right to exchange their Common Shares, the ordinary shares of Common Stock (including any Company Interests exchangeable for Tryg or the ordinary shares of the Target it owns as at the date hereof; provided, however, that, notwithstanding the foregoing, the lockup in this paragraph (a)(ii) with respect to Common Stock Shares only shall end no later than the date of the earliest of (A) the date of the earliest of the events in connection therewiththe foregoing clauses (1) for cash, securities or other property subsequent to through (3) and (B) 120 days following the Closing Date.
(cb) Notwithstanding The restrictions on Transfer contained in paragraph (a)(ii) shall not apply to Transfers where the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock equity securities are managed by arms-length parties pursuant to Section 4.3(b) a discretionary mandate or where the purpose of the Charter Transfer is to maintain a portfolio of investments which tracks a stock market index for pure investment purposes, provided in each case that the Transfer of equity securities (other than Common Shares) shall not be deemed have been consented to by or conducted in a Transfer for purposes manner consistent with the requirements of this Section 7the UK Panel on Takeovers and Mergers.
(dc) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations The Parties acknowledge and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each caseagree that, in the aggregate as of immediately following event that the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of Corporation waives the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise contained in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; paragraphs (a)(i) and (ii) if any Price-Based Lock-up Shares of any NET Power Holder in order to allow CDPQ and CPPIB (or Extended Lock-up Shares (as defined both) to exercise the demand registration rights provided for in the Sponsor Letter Agreementinvestor rights agreement entered into between the Corporation and each of CDPQ and CPPIB, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Partyas the case may be, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 contained in paragraphs (a)(i) and (ii) shall cease to apply in full or under in part in order to allow the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at Investor to Transfer the same time proportion of its ordinary shares of the Corporation (including the Placement Underlying Shares) as CDPQ or timesCPPIB, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to case may be, in the context of any such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationdemand registration.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 2 contracts
Samples: Subscription Agreement, Subscription Agreement
Lock-Up. Investor hereby agrees that, (ai) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with for the Company that it, he or she shall not Transfer any Lock-up Shares duration of such NET Power Holder (if any and to period from the extent applicable) date of this Agreement until the end twelve-month anniversary of the applicable Lock-up Period Closing (the “Lock-upUp Period for Exchange Shares”), Investor will not, without the prior approval of the Company, offer, pledge, sell, contract to sell, sell any option or contract to purchase, lend, transfer or otherwise dispose of any Exchange Shares (collectively, the “Lock-Up Exchange Shares”), and (ii) for the duration of period from the date of this Agreement until the six-month anniversary of the Closing (the “Lock-Up Period for Equity Securities”), Investor will not, without the prior approval of the Company, offer, pledge, sell, contract to sell, sell any option or contract to purchase, lend, transfer or otherwise dispose of any shares (other than the Exchange Shares) or any other equity security of the Company which Investor owns as of the date of this Agreement or comes to own after the date of this Agreement (collectively, the “Lock-Up Equity Securities”). For Notwithstanding the avoidance of doubtforegoing restrictions on transfer, the Lock-up shall not apply Investor may, at any time and from time to time, transfer any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Exchange Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a)Period for Exchange Shares, and/or transfer any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) Up Equity Securities during the Lock-Up Period without restriction under this Section 7for Equity Securities (i) as bona fide gifts or transfers by will or intestacy, (ii) $14.00 per shareto any trust for the direct or indirect benefit of Investor or the immediate family of Investor, then each NET Power Holderprovided that any such transfer shall not involve a disposition for value, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per shareto a partnership which is the general partner of a partnership of which Investor is a general partner, then provided, that, in the case of any gift or transfer described in clauses (i), (ii) or (iii), each NET Power Holdertransferee agrees in writing to be bound by the terms and conditions contained herein in the same manner as such terms and conditions apply to the undersigned, together with its Permitted Transfereesabsent such agreement to be bound said transfer will be deemed null and void ab initio. For purposes hereof, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based “immediate family” means Investor’s spouse, child or parent. During the Lock-up SharesUp Period for Exchange Shares and Lock-Up Period Equity Securities, notwithstanding anything contained herein Investor shall retain all rights of ownership in the Lock-Up Exchange Shares and Lock-Up Equity Securities, respectively, including, without limitation, voting rights and the right to receive any dividends that may be declared in respect thereof. The Company is hereby authorized and required to disclose the contrary, if, following the Closingexistence of this Agreement to American Stock Transfer and Trust Company LLC, the trading share price on Company’s transfer agent (the principal exchange on which such securities “Transfer Agent”). The Company and the Transfer Agent are then listed or quoted, which as hereby authorized and required to decline to make any transfer of the date hereof is the NYSEshares if such transfer would constitute a violation or breach of this Agreement. Investor understands that, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood for Exchange Shares and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder Up Period for Equity Securities, the certificates or other instruments representing the Lock-up Up Exchange Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based and Lock-up Shares”) of Up Equity Securities, respectively, including any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and applicable balance account at the same time or timesTransfer Agent, as shall bear a legend in substantially the other Timefollowing form (and a stop-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also transfer order may be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence placed against transfer of such amendment or modificationExchange Shares): THESE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A LOCKUP AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LOCKUP.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. (a) Maverick/Prentice Lock-Up.
(i) Subject to Sections 7(b) and 7(csection 2.2(a)(ii), each NET Power Holder agrees with until the date that is 90 days from the date hereof (the "Prentice/Maverick Initial Lock-Up Termination Date"), neither the Maverick Parties nor the Prentice Parties will, without the prior written consent of the Soros Parties, Rho and the Company, (1) sell, offer to sell, xxxxract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any shares of capital stock of the Company, (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any shares of capital stock of the Company, or any securities exchangeable for or any other rights to purchase any shares of capital stock of the Company that it, he or she shall not Transfer (3) publicly announce an intention to effect any transaction specified in clause (1) or (2) (such restrictions being referred to herein as the "Prentice/Maverick Lock-up Shares of such NET Power Holder (if any and Up Restrictions"). Notwithstanding anything to the extent applicable) until contrary contained herein, the end of the applicable Prentice/Maverick Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up Up Restrictions shall not apply to any Company Interestssale of Common Stock by the Maverick Parties or the Prentice Parties to Rho or an individual, warrants corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, or any other securities form of entity unaffiliated with Rho (a "Rho Co-Investor"), if (A) such sale is approved in writing by Rho and, to the extent required under Nasdaq rules and regulations, the Company's shareholders and (B) in the case of a sale to a Rho Co-Investor, the Rho Co-Investor was introduced to Prentice or Maverick (as applicable) by Rho. Notwithstanding anything to the contrary contained herein, the Maverick Parties and Prentice Parties hereby each covenant and agree that they will comply with the requirements of Section
2.1 with respect to any shares held by them as of the Company (whether acquired in the open market, directly from the Company, upon exercise record date of any warrants Company Stockholders' Vote with respect to the Stockholder Approval Condition or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment Board Restructuring Condition, regardless of a trading plan any transaction effected pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Section 2.2(a)(i)(1) or (2) hereof.
(ii) The Prentice/Maverick Lock-Up Shares during Restrictions shall continue to apply with respect to the LockPrentice Parties or the Maverick Parties (as the case may be) until the one year anniversary of the Initial Closing (or such earlier date as Rho and/or Soros is permitted to sell securities that are subject to thx xxxk-Up Period.
(b) Notwithstanding the provisions up set forth in Section 7(a2.2(b) hereof) if Rho and/or a Rho Co-Investor shall have offered, in writing, (and in the case of such a written offer, the Prentice Parties or the Maverick Parties, as the case may be, shall not have accepted such an offer), any NET Power Holder on or its Permitted Transferees may Transfer prior to the Prentice/Maverick Initial Lock-up Shares Up Termination Date, to purchase for cash at least 50% (or, in the case of such NET Power Holder (if any and to the extent applicablePrentice, 100%) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities owned by the Prentice Parties or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock Maverick Parties (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactionsthe case may be) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is on pricing terms no less favorable than those included in the NYSESecurities Purchase Agreement, for with such purchase to be consummated within 20 days of delivery of such written notice. In connection with any 20 trading days within such sale to Rho and/or a Rho Co-Investor, neither the Prentice Parties nor the Maverick Parties (as the case may be) shall be required to make any 30 consecutive trading-day period commencing at least 15 days after representations or warranties concerning the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under Company. Notwithstanding anything contained in this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”2.2(a)(ii) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Locklock-up Shares during restrictions applicable to (1) the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement Prentice Parties hereunder shall not apply to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (transfer by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under Prentice Parties to any person so long as Prentice Capital Management, L.P. remains the Sponsor Letter Agreement, as applicable, then beneficial owner of the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such releasetransferred securities; and (ii2) if the Maverick Parties hereunder shall not apply to any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (transfer by waiver, amendment or otherwise) released from any of the restrictions on Transfer under Maverick Parties to any person so long as Maverick Capital, Ltd. remains the beneficial owner of the transferred securities. For purposes of this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence2.2(a)(ii) only, the Company term "Prentice Parties" shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationnot include SAC.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c)Section 3.1, each NET Power Holder agrees with Purchaser acknowledges that the Company that itSecurities will not be transferable, he assignable or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to salable until one year after the extent applicable) until the end completion of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubtinitial business combination, the Lock-up shall not apply except to any Company Interests, warrants or other securities of the Company (whether acquired permitted transferees as described in the open market, directly from Registration Statement. Purchaser further acknowledges that the Company, upon exercise of any warrants securities acquired or otherwise) other than to be acquired hereby by Purchaser as the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all underwriter of the Company’s Stockholders having the right to exchange their shares of Common Stock IPO, including Purchaser’s related persons, associated persons and affiliates (including any Company Interests exchangeable for shares of Common Stock as those terms are defined in FINRA Rules 5110 and 5121), in connection therewith) for cash, securities or other property subsequent to with the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (IPO and as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e.Registration Statement for the IPO and the related prospectus, up are subject to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Locklock-up Sharesin compliance with FINRA Rule 5110(e)(1) for a period of 180 days from the commencement of sales of the initial public offering and can only be transferred or sold pursuant to the exceptions in FINRA Rule 5110(e)(2)(B). In addition, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as other terms of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to or any other agreement between the contraryCompany and Purchaser, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner Purchaser agrees with respect to the Sponsor TimePrivate Placement Warrants and the Class A Ordinary Shares issuable upon exercise of the Private Placement Warrants that, as required by FINRA Rule 5110(g)(8): (i) the Private Placement Warrants may not be exercised more than five years from the date that the Company’s Registration Statement on Form S-1 (File No.: 333-Based Lock-up 261373) is declared effective by the Securities and Exchange Commission (the “Effective Date”); (ii) Purchaser shall not have more than one demand registration right at the Company’s expense; (iii) Purchaser shall not have the right to demand registration of the Private Placement Warrants or Class A Ordinary Shares or Sponsor Price-Based Lock-up Shares favorable issuable upon exercise of the Private Placement Warrants more than five years from the Effective Date; (iv) Purchaser shall not have the right to Sponsor and such amendment or modification, if applied to this Agreement piggyback registration with respect to the Time-Based Lock-up Private Placement Warrants or Class A Ordinary Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any issuable upon exercise of the NET Power HoldersPrivate Placement Warrants more than seven years from the Effective Date; (v) the Private Placement Warrants may not have anti-dilution terms that allow Purchaser and related persons to receive more shares or to exercise at a lower price than originally agreed upon at the time of the public offering, each such NET Power Holder shall be afforded when the benefits ofpublic shareholders have not been proportionally affected by a share split, share dividend, or other similar event; and this Agreement shall be deemed amended (vi) Private Placement Warrants may not have anti-dilution terms that allow Purchaser and related persons to receive or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant accrue cash dividends prior to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days exercise or conversion of the occurrence of such amendment or modificationPrivate Placement Warrants.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Securities Purchase Agreement (Battery Future Acquisition Corp.)
Lock-Up. (a) Subject to Sections 7(b) and 7(c)Notwithstanding any registration of the Registerable Securities under this Section 6.1, each NET Power Holder Shareholders hereby agrees with that the Company that itShareholder (and any Shareholder's Rightsholder-successor) will not sell, he assign, pledge, hypothecate or she shall not Transfer otherwise transfer any Lock-up Shares Registerable Securities for a period of six months following the Effective Time (the "Lock Up"); provided, however, that, subject to applicable federal securities laws, (i) an aggregate of 21,429 shares of Parent Preferred Stock issued as Merger Consideration pursuant to this Agreement (or the shares of Parent Common Stock issuable upon conversion into such shares of Parent Common Stock of such NET Power Holder (if any and to the extent applicableaggregate 21,429 shares of Parent Preferred Stock) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly be exempt from the CompanyLock Up, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicableii) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, period commencing two months following the ClosingEffective Time and ending four months following the Effective Time, the last sale price of the Class A Common Stock each Shareholder (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactionsany Shareholder's Rightsholder-successor) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount sell up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, Registerable Securities (in each this case, in Parent Preferred Stock that the aggregate Shareholder received as Merger Consideration pursuant to this Agreement and/or Parent Common Stock received upon conversion of immediately following Parent Preferred Stock received as Merger Consideration pursuant to this Agreement) of the Closing Shareholder (and all of the aggregate PriceShareholder's Rightsholder-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations successors) and the like, the “NET Power Holders Price-Based Shares”(iii) during the Lockperiod commencing four months following the Effective Time and ending six months following the Effective Time, each Shareholder (or the Shareholder's Rightsholder-Up Period without restriction under this Section 7, (iisuccessor) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer sell up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause Registerable Securities (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrarycase, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event Parent Preferred Stock that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied Shareholder received as Merger Consideration pursuant to this Agreement with respect and/or Parent Common Stock received upon conversion of Parent Preferred Stock received as Merger Consideration pursuant to this Agreement) of the TimeShareholder (and all of the Shareholder's Rightsholder-Based Lock-up Shares or Price-Based Lock-up Sharessuccessors); further, provided, however, that the Lock Up will automatically expire if, at any time during the term of the Lock Up, the closing price of Parent Common Stock, as applicablereported by The Nasdaq Stock Market, would also be favorable to Inc. ("Nasdaq") (or, if Parent Common Stock is no longer listed on Nasdaq, by any exchange or other nationally recognized source of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect tostock quotations, such amendment or modification. In as the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentenceNational Association of Securities Dealers, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement Inc.'s Electronic Bulletin Board or the governing documents of the Company and OpCo as of the date hereofPink Sheets), shall equal or exceed $20.00 for twenty consecutive trading days.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) i. From the Closing and 7(c)until February 16, each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period 2022 (the “Lock-upLockup Release Date”), without the prior approval of the Company, Medytox shall not Dispose of (x) any of the Securities, together with any shares of Common Stock issued in respect thereof as a result of any stock split, stock dividend, share exchange, merger, consolidation or similar recapitalization, and (y) any Common Stock issued as (or issuable upon the exercise of any warrant, right or other security that is issued as) a dividend or other distribution with respect to, or in exchange or in replacement of, the shares of Common Stock described in clause (x) of this sentence (collectively (x) and (y), the “Lockup Shares”); provided, however, that, beginning 12 months after the Closing, the foregoing restrictions shall not prohibit Medytox from entering into a Permitted Pledge.
ii. The parties agree that: (w) from February 16, 2022 to September 16, 2023, Medytox may Dispose of up to 25% of the Lockup Shares; (x) from September 16, 2023 to September 16, 2024, Medytox may Dispose of up to an additional 25% of the Lockup Shares (in addition to any Lockup Shares not Disposed of under Section 4(e)(ii)(w) above); (y) from September 16, 2024 to September 16, 2025, Medytox may Dispose of up to an additional 25% of the Lockup Shares (in addition to any Lockup Shares not Disposed of under Sections 4(e)(ii)(w) and (x) above); and (z) from September 16, 2025, Medytox may Dispose of the remaining 25% of the Lockup Shares (in addition to any Lockup Shares not Disposed of under Sections 6(d)(ii)(w), (x) and (y) above). For clarity, Medytox may Dispose of any or all Lockup Shares from and after September 16, 2025.
iii. Notwithstanding the avoidance limitations on Disposing the Lockup Shares set forth in this Section 4(e), Medytox shall be permitted to transfer any number of doubt, the Lock-up shall not apply Lockup Shares (x) at any time to any Company InterestsAffiliate of Medytox, warrants provide such Affiliate agrees in writing to be subject to the terms and conditions of this Agreement and Medytox shall remain liable for any breach of such terms and conditions hereof by such Affiliate, (y) in connection with any transaction resulting in, or other securities expected to result in, a change in control of over 50% of the equity ownership or voting control of the Company (whether acquired in the open marketincluding by way of merger, directly from the Companypurchase of equity or assets, upon exercise of any warrants third party tender offer, or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(asubstantially similar transactions), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (iiz) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved at any time following any material breach of the Settlement Agreement by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock Company (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationapplicable cure periods contained therein).
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(cDuring the Lock-up Period (as defined below), each NET Power the Holder irrevocably agrees with the Company that it, he or she shall will not Transfer offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in below) (including any securities convertible into, or exchangeable for, or representing the Sponsor Letter Agreementrights to receive, “Sponsor Time-Based Lock-up Shares”) ), enter into a transaction that would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of such Lock-up Shares, whether any of these transactions are to be settled by delivery of any Sponsor Party such Lock-up Shares, in cash or otherwise, publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement, or engage in any Short Sales (as defined in below) with respect to any security of the Sponsor Letter Agreement)Purchaser; provided that if the Holder is the Chief Executive Officer of the Company, are the Holder may offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly (by waiverindirectly, amendment or otherwise) released from any up to 500,000 of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreementany such shares, “Sponsor Price-Based Lock-up Transfer Shares”) provided that the person acquiring such Transfer Shares shall sign and deliver to the Parent a resale lock-up agreement substantially in the form of this resale lock-up agreement and Sponsor Party, are directly or indirectly the lock-up period for such Transfer Shares shall be no shorter than the Lock-Up Period applicable to the Transfer Shares immediately prior to their transfer.
(by waiver, amendment or otherwiseb) released from any In furtherance of the restrictions foregoing, the Purchaser will (i) place an irrevocable stop order on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up all Purchaser Merger Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based which are Lock-up Shares, as applicableincluding those which may be covered by a registration statement, would also be favorable to any and (ii) notify the Purchaser’s stock transfer agent in writing of the NET Power Holders, each stop order and the restrictions on such NET Power Holder shall be afforded the benefits of, and Lock-up Shares under this Agreement shall be deemed amended and direct the Purchaser’s transfer agent not to process any attempts by the Holder to resell or modified to give effect totransfer any Lock-up Shares, such amendment or modification. In the event except in compliance with this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationAgreement.
(gc) For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the avoidance Securities Exchange Act of doubt1934, as amended (the “Exchange Act”) and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.
(d) For purpose of this Section 7 agreement, “Lock-up Period” shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.mean:
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during During the Lock-up Period (i) as defined below), the Holders irrevocably agree that they will not, without Purchaser’s written consent, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Class A common stock, par value $0.0001 per share, of Purchaser (the “Purchaser Common Stock (Stock”), including any Company Interests SPAC New Common Shares issued pursuant to the BC Agreement, or any securities convertible into, exercisable for or exchangeable for shares of Purchaser Common Stock in connection therewith) for cash(such convertible securities, securities together with the Purchaser Common Stock, the “Lock-up Securities”), enter into a transaction that would have the same effect, or enter into any swap, hedge or other property subsequent arrangement that transfers to another, in whole or in part, any of the Closing Dateeconomic consequences of ownership of such Lock-up Securities, whether any of these transactions are to be settled by delivery of any such Lock-up Securities, in cash or otherwise, publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement, or engage in any Short Sales (as defined below) with respect to any security of Purchaser.
(b) In furtherance of the foregoing, Purchaser will (i) place an irrevocable stop order on all Lock-up Securities, including those which may be covered by a registration statement, and (ii) notify Purchaser’s transfer agent in writing of the stop order and the restrictions on such Lock-up Securities under this Agreement and direct Purchaser’s transfer agent not to process any attempts by the Holders to resell or transfer any Lock-up Securities, except in compliance with this Agreement.
(c) Notwithstanding For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the provisions set forth in Section 7(aSecurities Exchange Act of 1934, as amended (the “Exchange Act”), the retirement and all types of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a Transfer for purposes of this Section 7total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.
(d) With respect to Price-Based For purpose of this Agreement, the “Lock-up Shares, notwithstanding anything contained herein to Period” means the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) period commencing on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days Closing Date and ending twelve months after the Closing, exceeds (i) $12.00 per share, then each of . The restrictions set forth herein shall not apply to the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transfereesfollowing, in each casecase where such transferee agrees in writing to be bound by the terms of this Agreement: (1) transfers or distributions to the Holders current or former general or limited partners, in managers or members, stockholders, other equity holders or direct or indirect affiliates (within the aggregate as meaning of immediately following Rule 405 under the Closing (the aggregate Price-Based Lock-up SharesSecurities Act of 1933, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and amended) or to the likeestates of any of the foregoing; (2) transfers by bona fide gift to a member of the Holders immediate family or to a trust, the “NET Power beneficiary of which is the Holders Price-Based Shares”or a member of the Holders immediate family for estate planning purposes; (3) during by virtue of the Lock-Up Period without restriction under this Section 7laws of descent and distribution upon death of the Holders; (4) by operation of law, such as pursuant to a qualified domestic relations order or as required by a divorce settlement, (ii5) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up transfers to an additional one-third of its NET Power Holders Price-Based Shares in excess of any charitable foundation controlled by the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer its members or stockholders or any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
respective immediate family; or (f6) Notwithstanding anything transfers whereby there is no change in this Agreement beneficial ownership; and provided further, that in each transfer pursuant to the contraryclauses (1) through (6) above, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder no filing or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or public announcement under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended Exchange Act or otherwise modified is required or voluntarily made by any party in a manner connection with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationtransfer.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Lock Up Agreement (Financial Strategies Acquisition Corp.)
Lock-Up. (a) Subject to Sections 7(b) and 7(cSection 7.12(b), each NET Power Holder agrees the holders (the “Current Lock-up Holders”) of shares of common stock, par value $0.0001 per share, of the Corporation (the “Corporation Common Stock”) issued (i) as consideration pursuant to the merger of BRPM Merger Sub, Inc., a Delaware corporation, with and into FaZe Clan Inc., a Delaware corporation, in accordance with the Company that itAgreement and Plan of Merger, he dated as of October 24, 2021, by and among FaZe Holdings Inc. (f/k/a X. Xxxxx Principal 150 Merger Corp.), BRPM Merger Sub, Inc. and FaZe Clan Inc. (such agreement, the “Merger Agreement”, and such transaction, the “FaZe Transaction”), including the Earn-Out Shares (as such term is defined in the Merger Agreement) or she shall (ii) to directors, officers and employees of the Corporation or its subsidiaries upon the settlement or exercise of restricted stock award, stock options or other equity awards outstanding as of immediately following the closing of the FaZe Transaction in respect of awards of FaZe Clan Inc. outstanding immediately prior to the closing of the FaZe Transaction (such shares referred to in Section 7.12(a)(ii), the “FaZe Equity Award Shares”), which holders include the Current Lock-up Holders’ Permitted Transferees and direct or indirect Permitted Transferees of any such holders (collectively, the “Additional Lock-up Holders”, and together with the Current Lock-up Holders, the “Lock-up Holders”), may not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a7.12(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, Holders may Transfer their Price-Based the Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up (a) as a bona fide gift or charitable contribution; (b) to one-third a trust, or other entity formed for estate planning purposes for the primary benefit of the Price-Based spouse, domestic partner, parent, sibling, child or grandchild of such Lock-up Shares Beneficially Owned by Holder or any other person with whom such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up SharesHolder has a relationship by blood, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and marriage or adoption not more remote than first cousin; (c) by will or intestate succession upon the like, the “NET Power Holders Price-Based Shares”) during death of the Lock-Up Period without restriction up Holder; (d) pursuant to a qualified domestic order, court order or in connection with a divorce settlement; (e) if such Lock-up Holder is a corporation, partnership (whether general, limited or otherwise), limited liability company, trust or other business entity, (I) to another corporation, partnership, limited liability company, trust or other business entity that controls, is controlled by or is under common control with the Lock-up Holder, or (II) to partners, limited liability company members or stockholders of the Lock-up Holder, including, for the avoidance of doubt, where the Lock-up Holder is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership; (f) if such Lock-up Holder is a trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust; (g) to the Corporation’s officers, directors or their affiliates; (h) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under subsections (a) through (g) of this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause 7.12(b); (i) as a pledge of shares of Corporation Common Stock as security or collateral in connection with any borrowing or the incurrence of any indebtedness by such Lock-up Holder; provided, however, that such borrowing or incurrence of indebtedness is secured by a portfolio of assets or equity interests issued by multiple issuers; provided further that neither the Corporation nor its counsel shall be required to take any action, or refrain from taking any action, in connection with any such pledge; (i.e., up to two-thirds of its NET Power Holders Price-Based Shares j) in the aggregateevent of completion of a Corporation Sale; (k) without restriction under this Section 7to the Corporation in connection with the repurchase of such Lock-up Holder’s shares in connection with the termination of the Lock-up Holder’s employment with the Corporation pursuant to contractual agreements with the Corporation; (l) to satisfy tax withholding obligations in connection with the exercise of options to purchase shares of Corporation Common Stock or the vesting of Corporation stock-based awards (for the avoidance of doubt, and any shares of Corporation Common Stock issued upon such exercise, other than the shares that are Transferred to satisfy tax withholding obligations in connection with such exercise, shall be subject to the Lock-up); or (iiim) $16.00 per sharein payment on a “net exercise” or “cashless” basis of the exercise or purchase price with respect to the exercise of options to purchase shares of Corporation Common Stock (for the avoidance of doubt, then each NET Power Holderany shares of Corporation Common Stock issued upon such exercise, together other than the shares that are Transferred in payment on a “net exercise” or “cashless” basis of the exercise or purchase price with its Permitted Transfereesrespect to such exercise, may Transfer any of its NET Power Holders Priceshall be subject to the Lock-Based Shares without restriction under this Section 7up).
(ec) With respect Notwithstanding the other provisions set forth in this Section 7.12 or any other provision contained herein, the Board may, in its sole discretion, determine to Time-Based waive, amend, or repeal the Lock-up Sharesobligations set forth in this Section 7.12, notwithstanding anything contained herein to the contrarywhether in whole or in part; provided, ifthat, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contraryPeriod, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by such waiver, amendment or otherwise) released from repeal of any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise obligations set forth in writing, also be released in a proportionate mannerSection 7.12, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any repeal of this Section 7.12(c), shall require the unanimous approval of the restrictions on Transfer under this Section 7 directors present at any meeting at which a quorum is present or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any approval of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationBoard by unanimous written consent.
(gd) For the avoidance purposes of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.7.12:
Appears in 1 contract
Samples: Merger Agreement (B. Riley Principal 150 Merger Corp.)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and Other than pursuant to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubtLLC Agreement, the Lock-up no Equityholder shall not apply to any Company InterestsTransfer, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise make a public announcement of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment intention to effect such Transfer, of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of any Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactionsdefined below) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned or otherwise held by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) Person during the Lock-Up Period without restriction under this (as defined below); provided, that such prohibition shall not apply to Transfers permitted pursuant to Section 7, 5.2. The “Lock-Up Period” shall be the period commencing on the Closing Date and ending on the date that is six (ii6) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional onemonths following the Closing Date. The “Lock-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause Up Shares” means (i) (i.e.the Class A Common Stock, up to two-thirds Class B Common Stock, Class C Common Stock, Common Units, Restricted Common Units, Warrants and Class A Common Stock issuable upon exercise of its NET Power Holders Price-Based Shares in Warrants held by the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; Equityholders and (ii) if any Price-Based Lock-up Shares shares of any NET Power Holder or Extended Lock-up Shares Class A Common Stock issued pursuant to (i) the LLC Agreement upon exchange of Company Units held as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under Closing Date, along with an equal number of Class B Common Stock, for Class A Common Stock and (ii) the Sponsor Letter AgreementCertificate of Incorporation upon conversion of Class C Common Stock into Class A Common Stock; provided, as applicablehowever, then that (x) any Equity Securities purchased by the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified Engaged Capital Investors pursuant to the immediately preceding sentenceForward Purchase Agreement, and (y) any Equity Securities purchased by (aa) the Company shall notify each NET Power Holder within two (2) business days Sponsor or any members of the occurrence Sponsor, any Affiliates of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer a member of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws Sponsor or as otherwise set forth in this Agreement or the governing documents any employees of a member of the Company Sponsor or a member’s Affiliates and OpCo as of (bb) Rellim Investment Company, LLC, in each case pursuant to any Subscription Agreement entered into with SilverBox and/or PubCo in connection with the date hereofentry into the BCA shall not be “Lock-Up Shares” under this Agreement.
Appears in 1 contract
Samples: Investor Rights Agreement (BRC Inc.)
Lock-Up. (a) Subject to Sections 7(b) Each Holder severally, and 7(c)not jointly, each NET Power Holder agrees with the Company that itPubCo not to effect any Transfer, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise make a public announcement of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment intention to effect such Transfer, of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of any Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactionsdefined below) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned or otherwise held by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) Person during the Lock-Up Period without restriction under this (as defined below) applicable to such Person; provided, that such prohibition shall not apply to Transfers (i) permitted pursuant to Section 74.2, (ii) $14.00 per shareby any Member following the Member Lock-Up Period (as defined below), then each NET Power Holder, together (iii) Transfers by private sales or Transfers made in connection with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess the consummation of the NET Power Holders PriceBusiness Combination, in each case by the Sponsor, at prices no greater than the price at which the securities were originally purchased, or (iv) by the Sponsor following the Sponsor Lock-Based Up Period (as defined below). The “Member Lock-Up Period” shall be the period commencing on the Closing Date and continuing until the date that is six (6) months after the Closing Date; provided that, the Member Lock-Up Period with respect to any Member’s Earnout Company Units and Earnout Voting Shares described shall not end prior to the date that such Member’s Earnout Company Units and Earnout Voting Shares are earned in accordance with the foregoing clause BCA. The “Sponsor Lock-Up Period” shall be (iw) with respect to Sponsor Earnout Shares, until the date such securities have been earned in accordance with the BCA, (i.e.x) with respect to the shares of Class A Common Stock issued in connection with the Class B Common Stock Conversion (other than the Sponsor Earnout Shares), up to two-thirds of its NET Power Holders Price-Based Shares in the aggregateperiod commencing on the Closing Date and continuing until the date that is six (6) without restriction under this Section 7months after the Closing Date, and (iiiy) $16.00 per sharewith respect to the Warrants (and the Class A Common Stock issuable upon exercise of the Warrants), then each NET Power Holder, together the period commencing on the Closing Date and continuing until the date that is thirty (30) days after the Closing Date. “Lock-Up Period” means with its Permitted Transferees, may Transfer respect to the Members (including any of its NET Power Holders Price-Based Shares without restriction Person who succeeds to such Member’s rights under this Investor Rights Agreement pursuant to Section 7.
(e) With respect to Time-Based 5.1), the Member Lock-up SharesUp Period and, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based (including any Person who succeeds to the Sponsor’s rights under this Investor Rights Agreement pursuant to Section 5.1), the Sponsor Lock-up Shares or Sponsor Price-Based Up Period. “Lock-up Shares favorable to Sponsor Up Shares” means the Equity Securities in PubCo and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of Operating Company held by the NET Power Holders, each such NET Power Holder shall be afforded the benefits ofdirectly or indirectly, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofClosing Date, including the Warrants (or any shares of Class A Common Stock resulting from the exercise of any Warrant), Class A Common Stock, Class V Voting Stock, and the Class A Common Units held by the Members or the Sponsor as of the Closing Date.
Appears in 1 contract
Lock-Up. 2.1 The Management Team, the Management Team’s ESOP Entity and the Employee ESOP Entity hereby agree that, prior to a Qualified IPO of the Company and so long as the Investor holds equity interest in the Company, without the consent of the Majority Investors (a) Subject to Sections 7(b) and 7(cmeaning the aggregate subscribed capital contribution of which exceeds two thirds of the subscribed capital contribution of all the Investors, the same below), each NET Power Holder agrees all Series C Investors and the Investors entitled to appoint the Investor Directors in accordance with Article 4.1 hereof, none of the Company Management Team, the Management Team’s ESOP Entity and the Employee ESOP Entity shall transfer, gift, pledge or otherwise dispose of or create any third party right on the equity interest directly or indirectly held by it in the Company; provided that it(i) in the event of increase of the Management Team, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and the existing Management Team members may transfer their equity interest to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”)newly admitted Management Team members. For the avoidance of doubt, in such case, the Lock-up newly admitted Management Team members shall not apply consent to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in be bound by this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide Article 2.1 and execute an accession agreement for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares transfer of such NET Power Holder (if any and equity interest between the Management Team members to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transfereesbe valid; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer grant of options or transfer of equity to incentive recipients for the purpose of implementing the equity incentive plan or for the purpose of implementing other incentive arrangements approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, Investor Directors; and (iii) $16.00 per sharethe exercise of the redemption rights by Management Team in accordance with Article 2.2 (collectively, then each NET Power Holderthe “Exempted Transfer”) shall not be subject to any right of consent, together with its Permitted TransfereesRight of First Refusal, may Transfer any Right of its NET Power Holders PriceCo-Based Shares without restriction under this Section 7sale or similar rights of the Company, the Investor and the other shareholders.
2.2 The Parties hereby acknowledge and agree that the equity interest held by each Management Team member through Hangzhou Yijing shall be Restricted Equity Interest. After the relevant Management Team have contributed their portion of the capital contribution in each installment in accordance with Article 4.3(8) of the Series A Investment Agreement, such portion of capital contribution shall be released on the first (e1) With respect to Timeanniversary of the relevant paid-Based Lock-up Shares, notwithstanding anything contained herein in date (but if any Management Team member made payment prior to the contrarypaid-in date set forth in Article 4.3(8) of the Series A Investment Agreement, if, following such period shall commence from the Closingpaid-in date set forth in Article 4.3(8) of the Series A Investment Agreement) (for the avoidance of doubt, the trading share price on the principal exchange on which such securities are then listed or quoted, which as portion of the date capital contribution shall still be subject to the provisions of Article 2.1 hereof is after the NYSErelease of restrictions), and the unpaid portion of capital contribution shall continue to be locked up until all are released; however, that if the Company succeeded in a Qualified IPO or occurred a deemed liquidation event, all shares of capital contribution of the Management Team which have not been released shall be immediately and fully released. If, before the completion of the release of restrictions on all shares of capital contribution held by a Management Team member, (a) such Management Team member resigns for any 20 trading days within any 30 consecutive tradingreason, or (b) he or she commits material breach of the employment contract, non-day period commencing at least six months after compete agreement or IP ownership agreement, grossly negligent or other serious neglect of duties as determined by the date board of Closingdirectors and as a result, exceeds $12.00 per sharehis or her capital contribution shall be taken back, then the NET Power Holders, together with their Permitted Transferees, may Transfer any other Management Team members shall have the right to repurchase all shares of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are capital contribution held by such Management Team member directly or indirectly (in proportion to the relative shares of capital contribution held by waiver, amendment or otherwise) released from any them at the price calculated on the basis of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Timeamount of paid-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect capital contribution corresponding to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and outstanding equity interests held by such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any Management Team member plus an annualized simple interest of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification5%. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to such case, the Transfer other shareholders of the Company Interests Beneficially Owned shall not have the Right of First Refusal, Right of Co-sale or any other similar rights.
2.3 The Parties hereby acknowledge and agree that any equity interest in the Company held by the NET Power Holders Employee ESOP Entity may only be used for the distribution of equity incentives under the equity incentive plan as decided by the board of directors. Unless for the purpose of implementing the equity incentive plan and upon resolution by the board of directors, the Employee ESOP Entity shall not, directly or indirectly, transfer, pledge, create an encumbrance upon or otherwise dispose of any equity interest in the Company held by it.
2.4 Unless the Investor has given its prior written consent, the Management Team shall devote all their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or working time and energy exclusively into the governing documents operation of the Company and OpCo as shall use their best efforts to promote the development of the date hereofCompany and for the benefit of the Company, and shall not engage in any part-time jobs, operations or investments that compete with the business of the Company.
Appears in 1 contract
Samples: Shareholders Agreement (I-Mab)
Lock-Up. (a) Subject Holder agrees, during the 12-month period beginning on the date of the consummation of the Merger, not to Sections 7(b) and 7(c)offer, each NET Power Holder agrees contract to sell or otherwise sell, dispose of, loan, pledge, grant any rights with respect to, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the Company that itsame economic effect as a sale (each, he or she shall not Transfer a “Disposition”) of any Lock-up Shares shares of such NET Power Holder (if any and Parent Common Stock, except to the extent applicablethat: (A)(i) until such Disposition is made pursuant to an effective registration statement under the end Securities Act of the applicable Lock-up Period 1933, as amended (the “Lock-up1933 Act”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants ) or other securities of the Company (whether acquired in the open market, directly an appropriate exemption from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; registration or (ii) Holder delivers to Parent a written opinion of counsel, reasonably acceptable to Parent in connection with a liquidationform and substance, merger, stock exchange, reorganization, tender offer approved by that such Disposition is otherwise exempt from registration under the Board or a duly authorized committee thereof or other similar transaction which results in all of 1933 Act; and (B) the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement number of shares of Class B Parent Common Stock pursuant subject to Section 4.3(bDispositions made by Holder during the three month-period ending on the date of such Disposition (and including the shares of Parent Common Stock subject to such Disposition) does not exceed 200% of the number of shares of Parent Common Stock Holder would be entitled to sell in accordance with the volume limitations set forth Rule 144(e) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price Rules and Regulations of the Class A Securities and Exchange Commission if all shares of Parent Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the subject to Dispositions made by Holder during such three-month period were “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares restricted securities” (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”Rule 144(a)(3) of any Sponsor Party (as defined in the Sponsor Letter AgreementRules and Regulations), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect Notwithstanding anything to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modificationcontrary herein, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended not prohibit a transfer of any shares of Parent Common Stock by Holder, if Holder is a partnership or modified limited liability company, to give effect toone or more partners or members of Holder or to an affiliated Person under common control with Holder; provided, however, that unless such transfer is effected in accordance with Section 2(b)(B) above, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant transfer shall be permitted only if, as a precondition to the immediately preceding sentencesuch transfer, the Company shall notify each NET Power Holder within two (2) business days transferee agrees in writing to be bound by all of the occurrence terms of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof2(b).
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and 4.1. According to the extent applicable) until the end of the applicable Lock-up Period Israeli Securities Law-1968 (the “Lock-upLaws”). For the avoidance of doubt, the LockPurchased Shares will be subject to a 6-up month lockup period (the “Initial Lockup Period”) followed by an 18- month (6 calendar quarters) period in which portions of the Purchased Shares will become tradable providing that (i) no more than 1% of the Company’s issued and outstanding shares each quarter will become tradable; and (ii) the daily amount of Purchased Shares permitted for trade shall not apply be no greater than the average daily volume of trade in the past 8 weeks prior to such trading date (the “Additional Lockup Period”); and, subject to Section 4.2 below, all of the Purchased Shares will become tradable after 24 months from the date of issuance.
4.2. In addition, the Purchased Shares shall be deemed to be “restricted securities” as such term (as defined in Rule 144 promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”)) and may only be disposed of in compliance with state and federal securities laws of the United States.
4.3. The Purchaser consents to the placement of a legend on any Company Interests, warrants certificate or other document evidencing the Purchased Shares that such securities of have not been registered under the Company Securities Act substantially similar to the following: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (whether acquired in the open marketTHE “SECURITIES ACT”), directly from the CompanyOR ANY STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, upon exercise of any warrants or otherwise) other than the Lock-up SharesOR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
4.4. Nothing in this Section 7 4 shall prohibit a NET Power Holder prevent Purchaser from transferring the establishment of a trading plan pursuant Purchased Shares to Rule 10b5-1 promulgated under the Exchange ActUnivo Pharmaceuticals Ltd., provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in holds all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) issued and outstanding share capital of the Charter shall not be deemed a Transfer for purposes of this Section 7Purchaser.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power The Holder hereby agrees with the Company that it, he or she shall they will not Transfer any the Lock-up Up Shares of such NET Power held by the Holder (if any and to the extent applicable) until the end as of the applicable Lock-up Period Effective Date, from the period beginning on the Effective Date and ending on, and including, the date that is six months following the Effective Date (the “Lock-upUp Term”). For The transfer restrictions set forth in this Agreement shall cease to apply commencing on the avoidance first calendar day immediately following the last day of doubt, the Lock-up shall not apply Up Term.
(b) Notwithstanding the foregoing restrictions on Transfer set forth in Section 2(a), the Holder may:
(i) Transfer Lock-Up Shares to any Company InterestsPermitted Transferee;
(ii) exercise any options, restricted stock units, warrants or other derivative securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of provided that the Holder shall otherwise comply with any warrants or otherwiserestrictions on Transfer applicable to the Shares underlying such securities; and
(iii) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of establish a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, Act during the Lock-Up Term for the Transfer of Shares (a “10b5-1 Plan”); provided that such plan does not provide parameters comply with the restrictions contained in Section 2(a) hereof during the Lock-Up Term; and
(iv) Transfer Lock-Up Shares to the Company; provided, however, that in the case of any Transfer or distribution pursuant to Section 2(b)(i), (x) in each case such Permitted Transferee must enter into a written agreement agreeing to be bound by this Agreement, including the restrictions on Transfer set forth in Section 2(a), and (y) such Permitted Transferee (other than a Permitted Transferee as defined in clause (ii) or (iii) thereof) agrees to promptly Transfer such Lock-Up Shares back to the Holder if such Permitted Transferee ceases to be a Permitted Transferee for any reason prior to the end of the Lock-Up Term.
(c) Notwithstanding anything to the contrary, the restrictions on Transfer set forth in Section 2(a) shall automatically terminate upon consummation of a Change of Control.
(d) The Holder acknowledges and agrees that any purported Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares violation of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect tonull and void ab initio, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, and the Company shall notify each NET Power not be required to register any such purported Transfer. If the Holder within two (2) business days effects or attempts to so effect a Transfer in violation of this Agreement, the occurrence Holder will be deemed to have committed a material breach of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating their obligations to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofhereunder.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Excess Subscription Receipt Lock-up Shares of such NET Power Holder (if any Release, the Investor shall not, and to shall procure that each Investor Affiliate shall not, without the extent applicable) until the end prior written consent of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open marketCorporation, directly from the Companyor indirectly, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.Transfer:
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) for the period commencing on the Closing Date until the earlier of (1) the date that is one month following the issuance of the Common Shares pursuant to the terms of the Subscription Receipts and (2) the date that is 12 months following the Closing Date, (A) any of such NET Power Holder’s Permitted Transfereesthe Subscribed Securities and (B) following the issuance of Common Shares pursuant to the terms of the Subscription Receipts, that number of Common Shares equal to the number of Placement Underlying Shares acquired pursuant to the Subscription Receipts; or or
(ii) in connection with a liquidationfor the period commencing on the date hereof and ending on the earliest of (1) the date of completion of the vote of shareholders of the Target, mergerif applicable, stock exchangerelated to the Acquisition, reorganization(2) the date on which the Takeover Offer, tender offer approved by the Board if applicable, becomes or a duly authorized committee thereof or other similar transaction which results is declared unconditional in all respects and (3) the date of termination of the Company’s Stockholders having Acquisition, the right to exchange their Common Shares, the ordinary shares of Common Stock (including any Company Interests exchangeable for Tryg or the ordinary shares of the Target it owns as at the date hereof; provided, however, that, notwithstanding the foregoing, the lockup in this paragraph (a)(ii) with respect to Common Stock Shares only shall end no later than the date of the earliest of (A) the date of the earliest of the events in connection therewiththe foregoing clauses (1) for cash, securities or other property subsequent to through (3) and (B) 120 days following the Closing Date.
(cb) Notwithstanding The restrictions on Transfer contained in paragraph (a)(ii) shall not apply to Transfers where the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock equity securities are managed by arms-length parties pursuant to Section 4.3(b) a discretionary mandate or where the purpose of the Charter Transfer is to maintain a portfolio of investments which tracks a stock market index for pure investment purposes, provided in each case that the Transfer of equity securities (other than Common Shares) shall not be deemed have been consented to by or conducted in a Transfer for purposes manner consistent with the requirements of this Section 7the UK Panel on Takeovers and Mergers.
(dc) With respect If an applicable regulator indicates, or the Investor reasonably determines, prior to Price-Based Lockthe Excess Common Share Final Approval Date, that a Required Excess Common Share Approval will not be granted or obtained, the Investor (directly or through its Investor Affiliates) shall be permitted, notwithstanding the terms of any lock-up Shares, notwithstanding anything contained herein with the Corporation that would otherwise apply to the contraryInvestor’s holding of Common Shares or Excess Subscription Receipts, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under including those referenced in this Section 7 in an amount up 26, to one-third dispose of the Price-Based Lock-up any or all of its Common Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, or Subscription Receipts that would otherwise result in the aggregate as of immediately following Investor holding Excess Common Shares or Excess Subscription Receipts (but only to the Closing (extent necessary to avoid the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”Investor holding any Excess Common Shares or Excess Subscription Receipts) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after upon the date of Closingsuch regulatory indication or the date the Investor notifies the Corporation of its determination until the Excess Common Share Final Approval Date (an “Excess Subscription Receipt Lock- up Release”), exceeds $12.00 per share, then and any such subscription receipts that are disposed of by the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during Investor to a third party by the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement Excess Common Share Final Approval Date pursuant to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement foregoing shall be deemed amended or modified not to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified be Excess Subscription Receipts and shall not thereafter be subject to cancellation pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days terms of the occurrence of such amendment or modificationSubscription Receipt Agreement.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Subscription Agreement
Lock-Up. (a) Subject Seller agrees that, during the period beginning from the Closing Date and continuing to Sections 7(band including the date that is one hundred eighty (180) and 7(c), each NET Power Holder agrees with days after the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period Closing Date (the “Lock-upUp Period”), Seller will not offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise transfer, assign or dispose of any of the Merger Shares. For The foregoing restriction is expressly agreed to preclude Seller from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the avoidance Merger Shares even if such shares would be disposed of doubtby someone other than Seller. Such prohibited hedging or other transactions would include, the Lock-up shall not apply without limitation, any short sale or any purchase, sale or grant of any right (including. without limitation, any put or call option) with respect to any Company Interests, warrants or other securities of the Company (whether acquired in the open marketMerger Shares or with respect to any security that includes, directly relates to, or derives any significant part of its value from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Sharessuch shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a)foregoing, any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period Seller may:
(i) to any of such NET Power Holder’s Permitted Transferees; or (ii) transfer the Merger Shares in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar change of control transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof that is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) consummated during the Lock-Up Period without restriction under that has been approved by the board of directors of Parent; provided, that in the event that such change of control transaction is not completed, the Merger Shares shall remain subject to the restrictions contained in this Section 7, 6.14 to the extent that the Lock-Up Period has not expired; and
(ii) $14.00 per sharetransfer the Merger Shares to (A) another corporation, then each NET Power Holderpartnership, together limited liability company or other entity that controls, is controlled by or is under common control with Seller or (B) as part of a disposition, transfer or distribution by Seller to its Permitted Transfereespartners, may Transfer up limited liability company members or other equity holders, or if Seller is a corporation, to any wholly-owned subsidiary of such corporation; provided, however, that in any such case, it shall be a condition to the transfer that the transferee execute an additional one-third agreement stating that the transferee is receiving and holding such Merger Shares subject to the provisions of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, 6.14 and (iii) $16.00 per share, then each NET Power Holder, together there shall be no further transfer of such Merger Shares except in accordance with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 76.14; provided, further, that any such transfer shall not involve a disposition for value.
(eb) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as For purposes of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.6.14:
Appears in 1 contract
Lock-Up. Without the prior writ ten consent of the ------- Company, the Investor may not transfer or otherwise dispose of any Securities prior to January 31, 2000. After such date, the Investor may only transfer or otherwise dispose of Securities (aincluding pursuant to the Registration Rights Agreement) in a transaction in which Securities are being transferred by Persons (which may include the Investor) holding a majority in interest of the then outstanding Securities (with respect to the Warrants, based on the number of Warrant Shares for which the Warrants are then exercisable) (the "Majority Holders"). Any such transaction is referred to herein as a "Permitted Transaction". Subject to Sections 7(bany applicable restrictions set forth in the Registration Rights Agreement, upon notice from the Majority Holders of a proposed Permitted Transaction, each other Person which then holds Securities (a "Permitted Holder") shall be entitled to, and 7(cupon request by the Majority Holders will (and the Company may, by notice to the Majority Holders, require that the Majority Holders so request), each NET Power Holder agrees with transfer in such Permitted Transaction, on the Company that itsame terms as those on which the Majority Holders are transferring Securities, he or she shall not Transfer any Lock-up Shares the same portion of such NET Power Holder Permitted Holder's Securities as the portion of the Securities then held by the Majority Holders being transferred in such Permitted Transaction ; provided, that if the purchaser(s) in such Permitted Transaction (if any and the "Permitted Transaction Purchasers") desire to purchase less than all of the Securities to be sold in such Permitted Transaction in accordance with this Section 5.3, the number of Securities to be so sold shall be reduced to the extent applicablenumber of such Securities to be purchased by the Permitted Transaction Purchasers, on a pro rata basis with respect to each Person selling Securities in such Permitted Transaction (each such Person, a "Permitted Transaction Seller"), based on the number of Securities then held by such Permitted Transaction Seller (with respect to any Warrants held by a Permitted Transaction Seller, based on the number of Warrant Shares for such Warrants are then exercisable) until relative to the end number of Securities then held by all Permitted Transaction Sellers. Notwithstanding the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubtforegoing, the Lock-up restrictions on transfer set forth in this Section 5.3 shall not apply to any Company Interests, warrants (i) transfer or other securities disposition of Securities by the Company Investor to any Permitted Transferee (whether acquired provided any such Permitted Transferee agrees in writing to be bound by the open market, directly from the Company, upon exercise first sentence of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from 5.3 to the establishment of a trading plan pursuant extent applicable to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any Investor and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect 5.3 applicable to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its a Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7Holder), (ii) $14.00 per shareany bona- fide pledge of, then each NET Power Holderor grant of a security interest in, together with its Permitted Transfereesany Securities to any senior creditor of Sneaker as of immediately prior to the Closing, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess or any foreclosure upon, or sale or other disposition of, such Securities by such creditor or any assignee or transferee of the NET Power Holders Price-Based Shares described in claim or interest of such creditor pursuant to any debt restructuring agreement, or any agent acting for any of the foregoing clause (i) (i.e.foregoing, up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and or (iii) $16.00 per shareany sale of Securities after January 31, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect 2000 pursuant to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended public offering or otherwise modified in on a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationpublic trading market.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Just for Feet Inc)
Lock-Up. (a) Subject to Sections 7(bDuring the applicable Lock-up Period provided in Section 1(d) and 7(c)hereof, each NET Power Holder agrees with the Company that it, he or she shall will not Transfer offer, sell, contract to sell, hypothecate, pledge, grant any Lock-up Shares of such NET Power Holder (if option to purchase or otherwise dispose of, directly or indirectly, any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreementbelow), are directly establish or indirectly (by waiverincrease a put equivalent position or liquidate with respect to or decrease a call equivalent position with respect to, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicableenter into a transaction that would have the same effect, would also be favorable to or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the NET Power Holderseconomic consequences of ownership of the Lock-up Shares, each whether any of these transactions are to be settled by delivery of any such NET Power Holder shall be afforded Lock-up Shares, in cash or otherwise, publicly disclose the benefits ofintention to make or to enter into any transaction specified above (such transaction, and this Agreement shall be deemed amended a “Transaction”), or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant engage in any Short Sales (as defined below) with respect to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationLock-up Shares.
(gb) In furtherance of the foregoing, during the applicable Lock-up Period, Parent will (i) place a stop order on all the Lock-up Shares, including those which may be covered by a registration statement, and (ii) notify Parent’s transfer agent in writing of the stop order and the restrictions on the Lock-up Shares under this Agreement and direct Parent’s transfer agent not to process any attempts by the Holder to resell or transfer any Lock-up Shares, except in compliance with this Agreement. In addition to any other applicable legends, each certificate or book entry position representing the Lock-up Shares shall be stamped or otherwise imprinted with a legend in substantially the following form: “THE SHARES REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP AGREEMENT, DATED AS OF [●], BY AND AMONG THE ISSUER OF SUCH SHARES (THE “ISSUER”) AND THE ISSUER’S SHAREHOLDER NAMED THEREIN. A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
(c) For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the avoidance Securities Exchange Act of doubt1934, this Section 7 shall in no way limit any restrictions as amended (the “Exchange Act”), and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofforeign regulated brokers.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(bEach Holder (including the Founder Holder) severally, and 7(c)not jointly, each NET Power Holder agrees with the Company that itPubCo not to effect any Transfer, he or she shall not Transfer make a public announcement of any intention to effect such Transfer, of any Lock-up Up Shares (as defined below) Beneficially Owned or otherwise held by such Person during the Lock-Up Period (as defined below); provided, that such prohibition shall not apply to Transfers (i) permitted pursuant to Section 4.2, (ii) permitted pursuant to Article III, (iii) by PIH pursuant to the PIH Distribution, (iv) by the Sellers (pro rata in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Sellers at the applicable time) to any party to any Subscription Agreement or Non-Redemption Agreement in accordance with the terms of such NET Power Holder Subscription Agreement or Non-Redemption Agreement, (if v) by any and to Seller following the extent applicable) until the end of the applicable Seller Lock-up Up Period (as defined below), including in any LP Distribution, (vi) by any Management Holder following the “Management Lock-up”)Up Period or (vii) of any Warrants by the Sponsor, other than the Locked-Up Warrants. For the avoidance of doubt, each Holder agrees with PubCo not to effect an LP Distribution during the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Seller Lock-Up Shares Period, and the Sponsor and Founder Holder agree with PubCo not to effect an LP Distribution during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transfereesprovided, in each such case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if notwithstanding anything to the contrary in this Investor Rights Agreement, Sponsor may Transfer any Time-Based Warrants that it owns during the Lock-up Shares Up Period, other than the Locked-Up Warrants, including through an LP Distribution. To the extent (I) PubCo permits any H&F Holder to make any Transfer of any NET Power Holder or a portion of its Lock-up Up Shares (as defined in prior to the Sponsor Letter Agreement, “Sponsor Time-Based expiration of the Seller Lock-up Shares”Up Period that is otherwise prohibited by this Section 4.1 and (II) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the other Sellers are not permitted to participate in such Transfer with a proportionate amount of their respective Lock-Up Shares, then PubCo shall concurrently release a proportionate amount of such other Sellers' respective Lock-Up Shares from the restrictions on Transfer under set forth in this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based 4.1. The “Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also Up Period” shall be released in a proportionate manner, the period commencing on the Closing Date and at ending on the same time or times, as date that is 18 months following the other Time-Based Closing Date. The “Seller Lock-up Shares or Sponsor TimeUp Period” shall be the period commencing on the Closing Date and ending on the date that is the earlier of (x) 18 months following the Closing Date and (y) the later of (A) the one year anniversary of the Closing Date and (B) the expiration of the applicable Market Stand-Based Off Period in respect of the second Underwritten Shelf Take-Down initiated by the H&F Holders after the date hereof; provided that, in the case of the foregoing clause (y), the H&F Holders may elect, upon written notice delivered to PubCo in advance of the date contemplated by the foregoing clause (y), in their sole discretion, to extend the Seller Lock-up Shares subject to such releaseUp Period until the date that is 18 months following the Closing Date; and (ii) provided, further, that, if any Price-Based the Seller Lock-up Shares of any NET Power Holder Up Period is waived or Extended Lock-up Shares (as defined reduced in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly whole or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner part with respect to the Sponsor Time-Based Lock-up Up Shares held by any LGP Holder, GIC Holder or Sponsor Price-Based Lock-up Shares favorable PIH Rollover Holder, then all other LGP Holders, GIC Holders and PIH Rollover Holders shall be entitled to Sponsor and such amendment a proportionate waiver or modification, if applied to this Agreement reduction with respect to the Time-Based their respective Lock-up Shares or Price-Based Up Shares. The “Initial Lock-up Up Period” shall be the period commencing on the Closing Date and ending on the date that is six (6) months following the Closing Date. The “Management Lock-Up Period” shall be the period commencing on the Closing Date and ending on the date that is twelve (12) months following the Closing Date. The “Lock-Up Shares, ” means the Registrable Securities held by the Holders as applicable, would also be favorable to any of the NET Power HoldersClosing Date or received by the Holders in the PIH Distribution, each such NET Power Holder shall be afforded including Common Stock and the benefits ofLocked-Up Warrants (but not including, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For for the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to Warrants other than the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofLocked-Up Warrants).
Appears in 1 contract
Samples: Investor Rights Agreement (Churchill Capital Corp III)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Each Holder hereby agrees with the Company that it, he or she shall it will not Transfer any Shares or interest therein beneficially owned or owned of record by such Holder (collectively, such Holder’s “Lock-up Shares of such NET Power Holder (if any and to the extent applicableUp Shares”) until the end earliest to occur of the applicable Lock-up Period following (the “Lock-upUp Term”): (i) the date that is six months following the Closing Date of the Merger (as defined in the Merger Agreement). For ; and (ii) the avoidance date following the consummation of doubtthe Merger on which the Company consummates a liquidation, the Lock-up shall not apply to any Company Interestsmerger, warrants stock exchange or other securities similar transaction that results in all of the Company Company’s stockholders having the right to exchange such stockholders’ Shares for (whether acquired in or having their Shares converted into) cash, securities or other property (or the open marketright to receive any of the foregoing), directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit any holding company reorganization or a NET Power Holder from the establishment of transaction that is intended solely to effect a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Periodredomestication.
(b) Notwithstanding the provisions foregoing restrictions on Transfer set forth in Section 7(a2(a), any NET Power each Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period may:
(i) Transfer its Lock-Up Shares to any of such NET Power Holder’s Permitted Transferees; or Transferee;
(ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their Transfer any shares of Common Stock (including any Company Interests or other securities convertible into or exercisable or exchangeable for shares of Common Stock acquired in connection therewith) for cash, securities or other property subsequent to open market transactions after the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) effective time of the Charter shall not be deemed Merger; provided, however, that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise, other than a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Sharesrequired filing on Schedule 13F, notwithstanding anything contained herein to the contrary13 D, if13D/A, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed 13G or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”13G/A) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and Term;
(iii) $16.00 per shareexercise any options or warrants to purchase shares of Common Stock (which exercises may be effected on a cashless basis to the extent the instruments representing such options or warrants permit exercises on a cashless basis); provided, then each NET Power Holderhowever, together that such Holder shall otherwise comply with its Permitted Transferees, may any restrictions on Transfer applicable to such underlying shares of Common Stock;
(iv) Transfer any shares of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as Common Stock issuable upon exercise of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares options that expire during the Lock-up Period without restriction under this Section 7.Up Term to the Company to satisfy tax withholding obligations as permitted by the compensation committee of the board of directors of the Company in its discretion pursuant to the Company’s equity incentive plans or arrangements;
(fv) Notwithstanding anything in this Agreement Transfer its Lock-Up Shares or other securities convertible into or exercisable or exchangeable for Common Stock to the contrary, it is understood and agreed that, (i) if Company pursuant to any Time-Based contractual arrangement in effect at the effective time of the Merger that provides for the repurchase by the Company of the Holder’s Lock-up Up Shares or other securities in connection with the termination of any NET Power Holder or such Holder’s service to the Company;
(vi) Transfer its Lock-up Up Shares in transactions approved by the board of directors of the Company in its discretion to satisfy any U.S. federal, state, or local income tax obligations of such Holder (or its direct or indirect owners) arising from a change in the Code, or the Regulations after the date on which the Merger Agreement was executed by the parties, and such change prevents the Merger from qualifying as a “reorganization” pursuant to Section 368 of the Code (and the Merger does not qualify for similar tax-free treatment pursuant to any successor or other provision of the Code or Regulations taking into account such changes); and
(vii) Transfer any shares of Common Stock or other securities acquired as part of the PIPE Investment (as defined in the Sponsor Letter Merger Agreement) or issued in exchange for, or on conversion or exercise of, any securities issued as part of the PIPE Investment; provided, however, that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise, other than a required filing on Schedule 13F, 13 D, 13D/A, 13G or 13G/A) during the Lock-Up Term; provided, however, that in the case of any Transfer or distribution pursuant to Subsections 2(b)(i), (x) in each case such transferees must enter into a written agreement agreeing to be bound by this Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of including the restrictions on Transfer under this set forth in Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner2(a), and at the same time or times, as the (y) such Permitted Transferee (other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (than a Permitted Transferee as defined in the Sponsor Letter Agreement, “Sponsor Price-Based clause (E) or (F) thereof) agrees to promptly Transfer such Lock-up Shares”) of and Sponsor PartyUp Shares back to such Holder if such Permitted Transferee ceases to be a Permitted Transferee for any reason prior to the date such Lock-Up Shares becomes freely transferable. Furthermore, are directly or indirectly (Section 2(a)shall not apply to the entry, by waiversuch Holder, amendment or otherwise) released from at any time after the effective time of the restrictions on Transfer under this Section 7 or Merger, of any trading plan providing for the sale of shares of Class A Common Stock by such Holder, which trading plan meets the requirements of Rule 10b5-1(c) under the Sponsor Letter AgreementSecurities Exchange Act of 1934, as applicableit may be amended from time to time; provided, then however, that such plan does not provide for, or permit, the Price-Based sale of any Common Stock during the Lock-up Shares of each other Stockholder Party, Sponsor Party Up Term and no public announcement or their Permitted Transferees, as applicable, shall, unless filing is voluntarily made or required regarding such person consents otherwise in writing, also be released in a proportionate manner, and at plan during the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Up Term.
(c) Each of the Holders acknowledges and agrees that any purported Transfer of Lock-up Up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any violation of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect tonull and void ab initio, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, and the Company shall notify each NET Power Holder within two (2) business days of the occurrence of not be required to register any such amendment or modificationpurported Transfer.
(gd) For Each of the avoidance Holders agrees and consents to the entry of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to stop transfer instructions with the Company’s transfer agent and registrar against the Transfer of the Company Interests Beneficially Owned by Shares except in compliance with the NET Power Holders foregoing restrictions and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or to the governing documents addition of a legend to such Holder’s Shares describing the Company and OpCo as of the date hereofforegoing restrictions.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Each Holder hereby agrees with the Company that it, he or she shall it will not Transfer any Shares or interest therein beneficially owned or owned of record by such Holder (collectively, such Holder’s “Lock-up Shares of such NET Power Holder (if any and to the extent applicableUp Shares”) until the end earliest to occur of the applicable Lock-up Period following (the “Lock-upUp Term”): (i) the date that is six months following the Closing Date of the Merger (as defined in the Merger Agreement). For ; and (ii) the avoidance date following the consummation of doubtthe Merger on which the Company consummates a liquidation, the Lock-up shall not apply to any Company Interestsmerger, warrants stock exchange or other securities similar transaction that results in all of the Company Company’s stockholders having the right to exchange such stockholders’ Shares for (whether acquired in or having their Shares converted into) cash, securities or other property (or the open marketright to receive any of the foregoing), directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit any holding company reorganization or a NET Power Holder from the establishment of transaction that is intended solely to effect a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Periodredomestication.
(b) Notwithstanding the provisions foregoing restrictions on Transfer set forth in Section 7(a2(a), any NET Power each Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period may:
(i) Transfer its Lock-Up Shares to any of such NET Power Holder’s Permitted Transferees; or Transferee;
(ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their Transfer any shares of Common Stock (including any Company Interests or other securities convertible into or exercisable or exchangeable for shares of Common Stock acquired in connection therewith) for cash, securities or other property subsequent to open market transactions after the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) effective time of the Charter shall not be deemed Merger; provided, however, that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise, other than a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Sharesrequired filing on Schedule 10X, notwithstanding anything contained herein to the contrary00X, if00X/X, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed 13G or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”13G/A) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and Term;
(iii) $16.00 per shareexercise any options or warrants to purchase shares of Common Stock (which exercises may be effected on a cashless basis to the extent the instruments representing such options or warrants permit exercises on a cashless basis); provided, then each NET Power Holderhowever, together that such Holder shall otherwise comply with its Permitted Transferees, may any restrictions on Transfer applicable to such underlying shares of Common Stock;
(iv) Transfer any shares of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as Common Stock issuable upon exercise of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares options that expire during the Lock-up Period without restriction under this Section 7.Up Term to the Company to satisfy tax withholding obligations as permitted by the compensation committee of the board of directors of the Company in its discretion pursuant to the Company’s equity incentive plans or arrangements;
(fv) Notwithstanding anything in this Agreement Transfer its Lock-Up Shares or other securities convertible into or exercisable or exchangeable for Common Stock to the contrary, it is understood and agreed that, (i) if Company pursuant to any Time-Based contractual arrangement in effect at the effective time of the Merger that provides for the repurchase by the Company of the Holder’s Lock-up Up Shares or other securities in connection with the termination of any NET Power Holder or such Holder’s service to the Company;
(vi) Transfer its Lock-up Up Shares in transactions approved by the board of directors of the Company in its discretion to satisfy any U.S. federal, state, or local income tax obligations of such Holder (or its direct or indirect owners) arising from a change in the Code, or the Regulations after the date on which the Merger Agreement was executed by the parties, and such change prevents the Merger from qualifying as a “reorganization” pursuant to Section 368 of the Code (and the Merger does not qualify for similar tax-free treatment pursuant to any successor or other provision of the Code or Regulations taking into account such changes); and
(vii) Transfer any Adjusted EBITDA Shares (as defined in the Sponsor Letter Merger Agreement) when and if received by the Holder; provided, however, that in the case of any Transfer or distribution pursuant to Subsections 2(b)(i), (x) in each case such transferees must enter into a written agreement agreeing to be bound by this Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of including the restrictions on Transfer under this set forth in Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner2(a), and at the same time or times, as the (y) such Permitted Transferee (other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (than a Permitted Transferee as defined in the Sponsor Letter Agreement, “Sponsor Price-Based clause (E) or (F) thereof) agrees to promptly Transfer such Lock-up Shares”Up Shares back to such Holder if such Permitted Transferee ceases to be a Permitted Transferee for any reason prior to the date such Lock-Up Shares becomes freely transferable. Furthermore, Section 2(a) of and Sponsor Partyshall not apply to the entry, are directly or indirectly (by waiversuch Holder, amendment or otherwise) released from at any time after the effective time of the restrictions on Transfer under this Section 7 or Merger, of any trading plan providing for the sale of shares of Common Stock by such Holder, which trading plan meets the requirements of Rule 10b5-1(c) under the Sponsor Letter AgreementSecurities Exchange Act of 1934, as applicableit may be amended from time to time; provided, then however, that such plan does not provide for, or permit, the Price-Based sale of any Common Stock during the Lock-up Shares of each other Stockholder Party, Sponsor Party Up Term and no public announcement or their Permitted Transferees, as applicable, shall, unless filing is voluntarily made or required regarding such person consents otherwise in writing, also be released in a proportionate manner, and at plan during the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Up Term.
(c) Each of the Holders acknowledges and agrees that any purported Transfer of Lock-up Up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any violation of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect tonull and void ab initio, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, and the Company shall notify each NET Power Holder within two (2) business days of the occurrence of not be required to register any such amendment or modificationpurported Transfer.
(gd) For Each of the avoidance Holders agrees and consents to the entry of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to stop transfer instructions with the Company’s transfer agent and registrar against the Transfer of the Company Interests Beneficially Owned by Shares except in compliance with the NET Power Holders foregoing restrictions and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or to the governing documents addition of a legend to such Holder’s Shares describing the Company and OpCo as of the date hereofforegoing restrictions.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) 6.1 From and 7(c)after the Closing Date and until the date that is six months after the Closing Date, each NET Power Holder agrees with without the Company that itprior approval of the Company, he or she the Share Acquiror shall not Transfer Dispose of (x) any Lock-up of the Shares, together with any shares of Common Stock issued in respect thereof as a result of any stock split, stock dividend, share exchange, merger, consolidation or similar recapitalization, and (y) any Common Stock issued as (or issuable upon the exercise of any warrant, right or other security that is issued as) a dividend or other distribution with respect to, or in exchange or in replacement of, the shares of Common Stock described in clause (x) of this sentence (collectively, “Lockup Shares”); provided, however, that the foregoing shall not prohibit the Share Acquiror from transferring any Lockup Shares to (i) a Permitted Transferee; provided that the Permitted Transferee agrees to be bound in writing by the restrictions set forth herein; or (ii) to the Company.
6.2 From and after the date that is six months after the Closing Date through the fifth (5th) anniversary of the Closing Date, without the prior approval of the Company, the Share Acquiror hereby agrees that it shall not, at any specific time, Dispose of more than the Dribble Amount of Lockup Shares as of such NET Power Holder time; provided, however, that the foregoing shall not prohibit the Share Acquiror from transferring any Lockup Shares to (if any and i) a Permitted Transferee; provided that the Permitted Transferee agrees to be bound in writing by the restrictions set forth herein; or (ii) to the extent applicableCompany. “Dribble Amount” of Lockup Shares shall mean, as of a specific time, the maximum number of Lockup Shares that the Share Acquiror would be permitted to Dispose if the Lockup Shares were subject to the volume limitations set forth in Rule 144(e) until under the end of the applicable Lock-up Period Securities Act (the “Lock-up”). For and, for the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions other limitations on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise sale set forth in Rule 144 under the Securities Act). The parties acknowledge that the restrictions in this Agreement or the governing documents paragraph are contractual in nature rather than pursuant to an interpretation of the Company and OpCo as of the date hereofRule 144.
Appears in 1 contract
Samples: Share Issuance Agreement (Dicerna Pharmaceuticals Inc)
Lock-Up. (a) Subject 4.1 Without prejudice to Sections 7(b) and 7(c)Clause 4.2, each NET Power Holder the Seller agrees with the Company that it, he or she it shall not Transfer sell, transfer or otherwise dispose of any Lock-up of the Sotheby’s Shares that it receives as Initial Consideration or of such NET Power Holder (if any and its economic interest therein until the second anniversary of Completion. The Seller acknowledges that appropriate stop transfer notations shall be reflected in the stock records of Purchaser.
4.2 In addition to the extent applicable) obligations in the previous Clause, the Seller agrees that it shall retain a number of Sotheby’s Shares equalling 20% of the Initial Consideration and that it shall not in any way sell, transfer or otherwise dispose such Sotheby’s Shares or its economic interest therein or create any Restriction on such shares until the end fifth anniversary of Completion. The Seller acknowledges that appropriate stop transfer notations shall be reflected in the stock records of Purchaser.
4.3 The restriction on the transfer of Sotheby’s Shares contained in Clause 4.1 and 4.2 shall terminate in the event of (i) a public bid on Sotheby’s Shares, unless the board of directors of the applicable Lock-up Period Purchaser has publicly declared such bid to be hostile (ii) a delisting of all Sotheby’s Shares, or (iii) a merger or demerger of Purchaser in which Sotheby’s Shares are exchanged for other consideration provided in each case that the “Lock-up”). parties understand and agree that Purchaser intends to merge with and into Sotheby’s Delaware, Inc. in connection with a pending reincorporation transaction and that such merger shall not result in the termination of the transfer restrictions set forth herein.
4.4 For the avoidance of doubt, it is provided that the Lock-up shall as set forth in this Clause does not apply to any Company Intereststransfer of Sotheby’s Shares received by the Seller as Consideration to a family trust, warrants or other securities of provided that, prior to such transfer, such trust shall undertake, and Noortman shall procure that such trust shall undertake, that it shall be bound by the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Locksame lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (obligations as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which Seller as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofClause.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Sothebys)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Each Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit Underwriter Holders) severally, and not jointly, agrees with PubCo not to effect any Transfer, or make a NET Power Holder from the establishment public announcement of a trading plan pursuant any intention to Rule 10b5-1 promulgated under the Exchange Acteffect such Transfer, provided that such plan does not provide for the Transfer of any Lock-Up Shares (as defined below) Beneficially Owned or otherwise held by such Person during the Lock-Up Period.
Period (bas defined below) Notwithstanding the provisions set forth in Section 7(a)applicable to such Person; provided, any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of that such NET Power Holder (if any and prohibition shall not apply to the extent applicable) during the Lock-up Period Transfers (i) permitted pursuant to any of such NET Power Holder’s Permitted Transferees; or Section 4.2, (ii) permitted pursuant to Article III, (iii) to PubCo of Class V Voting Stock Beneficially Owned by the Members in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved the sale by the Board or a duly authorized committee thereof or other similar transaction which results Members to the Operating Company of any Redeemed Post-Closing Company Units in all accordance with the BCA, (iv) by any Member following the Member Lock-Up Period (as defined below), (v) pursuant to the exchange of Class A Common Units for Class A Common Stock and of Class V Voting Stock for Class A Common Units in accordance with the terms and conditions of the Company’s Stockholders having Company A&R LLCA, (vi) by Xxxxxx Xxxxxx following the right to exchange their shares of Common Stock Xxxxxx Lock-Up Period (including as defined below), or (vii) by any Company Interests exchangeable for shares of Common Stock in connection therewithFounder Holder other than Xxxxxx Xxxxxx following the Founder Holder Lock-Up Period (as defined below). The “Member Lock-Up Period” shall be the period commencing on the Closing Date and continuing until the date that is nine (9) for cash, securities or other property subsequent to months after the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a); provided that, the retirement Member Lock-Up Period with respect to any Members Earnout Company Units and the Earnout Voting Shares shall not end prior to the date that such Members Earnout Company Units and Earnout Voting Shares are earned in accordance with the BCA. The “Xxxxxx Lock-Up Period” shall be the period commencing on the Closing Date and continuing until the date that is twenty-four (24) months after the Closing Date. The “Founder Holder Lock-Up Period” shall be (i) (x) with respect to 50% of the shares of Class A Common Stock issued in connection with the Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the ClosingConversion, the last sale earlier of (A) one year after the Closing Date and (B) the date on which the closing price of the Class A Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations reorganizations and similar transactionsrecapitalizations) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading30-trading day period commencing at least 15 days after the ClosingClosing Date, exceeds and (iy) $12.00 per share, then each with respect to the remaining 50% of the NET Power Holdersshares of Class A Common Stock issued in connection with the Class B Common Stock Conversion, together with its Permitted Transfereesone year after the Closing Date, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transfereesor earlier, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the likeif, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7Company consummates a subsequent liquidation, (ii) $14.00 per sharemerger, then each NET Power Holdercapital stock exchange, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares reorganization or other similar transaction that results in excess all of the NET Power Holders Price-Based Shares described in Company’s stockholders having the foregoing clause (i) (i.e.right to exchange their shares of Class A Common Stock for cash, up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7securities or other property, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if with respect to any Price-Based (x) Private Placement Units (or any securities underlying the Private Placement Units, including the shares of Class A Common Stock and the Warrants included in the Private Placement Units and the shares of Class A Common Stock issued or issuable upon exercise of such Warrants) held by them or (y) any Warrants (or any shares of Class A Common Stock issued or issuable upon the exercise of the Warrants) held by them, until 30 days after the Closing Date. “Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner Up Period” means with respect to the Sponsor Time-Based Members (including any Person who succeeds to such Member’s rights under this Investor Rights Agreement pursuant to Section 5.1), the Member Lock-up Shares or Sponsor Price-Based Up Period, with respect to Xxxxxx Xxxxxx (including any Person who succeeds to his rights under this Investor Rights Agreement pursuant to Section 5.1), the Xxxxxx Lock-up Shares favorable to Sponsor Up Period, and such amendment or modification, if applied to this Agreement with respect to the Time-Based Founder Holders other than Xxxxxx Xxxxxx (including any Person who succeeds to such Founder Holder’s rights under this Investor Rights Agreement pursuant to Section 5.1), the Founder Holder Lock-up Shares or Price-Based Up Period. “Lock-up Up Shares, as applicable, would also be favorable to any of ” means the NET Power Equity Securities in PubCo and the Operating Company held by the Holders, each such NET Power Holder shall be afforded the benefits ofdirectly or indirectly, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofClosing Date, including the Warrants (or any shares of Class A Common Stock resulting from the exercise of any Warrant), Class A Common Stock, Class V Voting Stock, and the Class A Common Units held by the Members or the Founder Holders as of the Closing Date; provided that, solely with respect to Xxxxxx Xxxxxx, such term shall only apply to Equity Securities held directly by Xx. Xxxxxx and any Equity Securities which are distributed or distributable by the Sponsor to Xx. Xxxxxx.
Appears in 1 contract
Samples: Business Combination Agreement (FG New America Acquisition Corp.)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder Stockholder Party agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder Stockholder Party (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder Stockholder Party or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder Stockholder Party (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power HolderStockholder Party’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), (i) to the extent applicable, any Company Interests or shares of Common Stock issued to any Stockholder Party upon exercise of any of such Stockholder Party’s warrants to purchase Company Interests or shares of Common Stock shall be deemed to be Company Interests or shares of Common Stock, as the case may be, Beneficially Owned by such Stockholder Party as of the Closing and such exercise shall not be deemed a Transfer for purposes of this Section 7 and (ii) the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding Notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSENew York Stock Exchange, for any 20 10 trading days within any 30 consecutive 15 trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 13.50 per share, then each of the NET Power Aria Holders, together with its their Permitted Transferees, may Transfer their Price-Based applicable Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder the Aria Holders and its their respective Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Aria Holders Price-Based Closing Shares”) during the Lock-Up Period without restriction under this Section 7), (ii) $14.00 16.00 per share, then each NET Power Holderthe Aria Holders, together with its their Permitted Transferees, may Transfer up to an additional one-third of its NET Power the Aria Holders Price-Based Closing Shares in excess of the NET Power Aria Holders Price-Based Closing Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power the Aria Holders Price-Based Closing Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 19.00 per share, then the NET Power Aria Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up the Aria Holders Closing Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Aria Holders and their respective Permitted Transferees Closing Shares under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(bthe exceptions set forth in this Article X, the holders of common stock, par value $0.0001 per share, of the Corporation (“Common Stock”), issued after the adoption of these Bylaws (a) to the former holders of capital stock of Xxxxxx Computing, Inc. (“Legacy Xxxxxx” and such holders “Legacy Holders”) (x) as consideration in connection with the merger of Tigre Merger Sub, Inc. (“Merger Sub”), with and into Legacy Xxxxxx (the “Merger”) pursuant to that certain Business Combination Agreement (as amended from time to time in accordance with its terms, the “Business Combination Agreement”), dated as of September 6, 2023, by and among the Corporation (at the time named Xxxxxxxx Acquisition Corp.), Merger Sub and Legacy Xxxxxx or (y) in respect of any options or warrants to purchase shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive Common Stock, or any interest in any of the foregoing which as of or immediately following the effective time of the Merger are owned directly by the Legacy Holders (including holding as a custodian) or with respect to which such Legacy Holder has beneficial ownership within the rules and regulations of the U.S. Securities and Exchange Commission or (b) to the former holders of stock options or other equity awards of Legacy Xxxxxx (“Legacy Options and Awards”) upon the settlement or exercise of stock options or other equity awards issued in respect of the conversion of Legacy Options and Awards pursuant to the Business Combination Agreement (the shares of Common Stock described in clauses (a) and 7(c)clause (b) above, each NET Power Holder agrees with together, the Company that it, he or she shall not Transfer any “Lock-up Shares Up Shares” and such holders of such NET Power Holder (if any and Lock-Up Shares, the “Lock-Up Holders”) may not, prior to the extent applicable) until the end of the applicable Lock-Up Period (as defined below) (i) directly or indirectly, offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any Lock-Up Shares, or any options or warrants to purchase any Lock-Up Shares or (ii) enter into any swap or hedging or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Lock-Up Shares, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise. The foregoing restriction is expressly agreed to preclude each Lock-Up Holder from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of such Lock-Up Holder’s Lock-Up Shares even if such shares of Common Stock would be disposed of by someone other than the Lock-up Period Holder during the Lock-up Period. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any of the Lock-Up Holder’s Lock-Up Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such shares of Common Stock.
(b) Notwithstanding anything to the contrary contained herein, any Legacy Holder that has entered into a Lock-Up Agreement (as defined below) or any other separate lock-up agreement with the Corporation (such holders, the “Electing Holders”, and such lock-up agreements, including the Lock-upUp Agreement, the “Separate Lock-Up Agreements”)) shall in no event be considered a Lock-Up Holder hereunder and the restrictions on transfers set forth in Section 10.1(a) of this Article X shall not apply to any Electing Holder. For the avoidance of doubt, the any shares of Common Stock held by an Electing Holder shall be subject solely to any restrictions on transfer set forth in their respective Separate Lock-up shall not apply Up Agreement.
(c) Subject to Section 10.2, any Company Interests, warrants or other securities of the Company Permitted Transferees (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwiseas defined below) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during may not transfer or dispose of any Lock-Up Shares until the end of the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Business Combination Agreement (Andretti Acquisition Corp.)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance period of doubttwelve months from the date hereof, without the Lock-up shall not apply to any Company Interests, warrants or other securities prior written consent of the Company (whether acquired in the open market, directly from the Company, upon exercise RGC shall not, alone or through or with any other person or entity, in any manner:
(i) offer for sale, sell, pledge, or otherwise dispose of (or enter into any warrants transaction or otherwisedevice that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from common stock of the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under Company; or
(ii) make any short sales, enter into any hedging, derivative or similar transactions regarding the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up PeriodCompany's common stock.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following RGC may sell or otherwise transfer the Closing, Company's common stock to an affiliate (as such term is defined in Rule 144 promulgated under the last sale price Securities Act) of RGC (an "RGC Affiliate") without the prior written consent of the Class A Common Stock (as adjusted for stock splitsCompany; provided, stock dividends, reorganizations, recapitalizations and similar transactions) (however that the “trading share price”) on RGC Affiliate agrees to be bound by the principal exchange on which such securities are then listed or quoted, which as provisions of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 74.
(ec) With respect to Time-Based Lock-up Shares, notwithstanding Notwithstanding anything contained herein to the contrary, ifRGC may, following upon the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as prior written consent of the date hereof is Company (which approval shall not be unreasonably withheld), sell or otherwise transfer the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after Company's common stock in a private transaction to a third party which: (i) agrees to be bound by the date provisions of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 74, and (ii) is not an RGC Affiliate.
(fd) Notwithstanding anything in this Agreement contained herein to the contrary, it is understood and agreed thatRGC shall be entitled, (i) at any time, to engage in a disposition of the Company's common stock, if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares the Trading Price (as defined below) of the Company's common stock exceeds $1.00 (to be proportionately adjusted in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) event of any Sponsor Party subdivision or combination of the Company's common stock) during each Trading Day in any Trading Period (as defined in below). "Trading Price" means an amount equal to the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any average of the restrictions closing bid and ask prices on Transfer under this Section 7 a Trading Day (as defined below) as reported by the Nasdaq SmallCap Market (the "NasdaqSC") or under such other securities exchange on which the Sponsor Letter AgreementCompany's common stock is publicly traded ("Other Exchange"). "Trading Day" means a day on which the Company's common stock is traded on the Nasdaq or such Other Exchange, as applicable, then . "Trading Period" means the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the five Trading Days immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofof disposition.
Appears in 1 contract
Lock-Up. (a) Subject Subscriber acknowledges that the Shares will be subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Locklock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period provisions (the “Lock-up”) contained in a Letter Agreement, to be entered into prior to the date of the preliminary prospectus in connection with the IPO between the Subscriber and the Company (the “Letter Agreement”). For Pursuant to the avoidance Letter Agreement, the Subscriber will agree (a) not to sell, transfer, pledge, hypothecate or otherwise dispose of doubtall or any part of the non-Forfeiture Shares for one year following the closing of the Business Combination (the “Lock-up Period”) and (b) not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Forfeiture Shares until the date the applicable sales price targets set forth in Section 3.2 have been met (the “Forfeiture Shares Lock-up Period”). After the conclusion of the Lock-up Period, the non-Forfeiture Shares shall not apply be freely transferable (subject to any Company Interests, warrants or the other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing restrictions set forth in this Section 7 shall prohibit a NET Power Holder from 5 and the establishment of a trading plan pursuant obligation to Rule 10b5forfeit the non-1 promulgated under the Exchange ActForfeiture Shares in accordance with Section 3.1, if applicable) provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.that:
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (iia) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, event the last sale price of the Class A Common Stock Company’s Ordinary Shares equals or exceeds $11.50 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading30-trading day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.Period, fifty percent (50%) of the non-Forfeiture Shares shall be released from the Lock-up; and
(fb) Notwithstanding anything in this Agreement to the contraryevent the last sale price of the Company’s Ordinary Shares equals or exceeds $15.00 per share (as adjusted for stock splits, it is understood share dividends, reorganizations, recapitalizations and agreed that, (ithe like) if for any Time20 trading days within any 30-Based trading day period during the Lock-up Period, the remaining fifty percent (50%) of the non-Forfeiture Shares shall be released from the Lock-up. After the conclusion of any NET Power Holder or the Forfeiture Shares Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner Period with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor a tranche of Forfeiture Shares, and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up extent such Forfeiture Shares or Price-Based Lock-up Shareshave not been forfeited pursuant to Section 3.2, as applicable, would also be favorable to any the applicable tranche of the NET Power Holders, each such NET Power Holder Forfeiture Shares shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationfreely transferable.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Securities Purchase Agreement (Blue Wolf Mongolia Holdings Corp.)
Lock-Up. 2.1. Mayne and HPLLC (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any a “Lock-up Shares of such NET Power Holder (if any Up Holder” and, collectively, the “Lock-Up Holders”) agree that, during the period beginning on and to including the extent applicable) until Effective Date through and including the end date that is the first anniversary of the applicable Lock-up Period Effective Date (the “Lock-upUp Period”). For the avoidance , each of doubtthem will not, the Lock-up shall not apply directly or indirectly:
(a) offer, pledge, sell, contract to sell, sell any Company Interestsoption or contract to purchase, warrants purchase any option or other securities contract to sell, grant any option, right or warrant to purchase, lend or otherwise Transfer of any shares of the Company (Equity Securities or any securities convertible into or exercisable or exchangeable in Equity Securities, whether now owned or hereafter acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during by the Lock-Up Period.Holders or with respect to which the Lock-Up Holders has or hereafter acquires the power of disposition, or
(b) enter into any swap or other agreement, arrangement or transaction that Transfers to another, in whole or in part, directly or indirectly, any of the economic consequence of ownership of any Equity Securities or any securities convertible into or exercisable or exchangeable for any Equity Securities,
(c) whether any transaction described in clause (a) or (b) above is to be settled by delivery of Equity Securities, other securities, in cash or otherwise, or publicly announce any intention to do any of the foregoing.
2.2. Notwithstanding the provisions set forth in Section 7(a)2.1, any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares Up Holders may, without the prior written consent of the other parties, Transfer any Equity Securities or any securities convertible into or exchangeable or exercisable for Equity Securities to an Affiliate of such NET Power Lock-Up Holder (if such Transfer is not for value; provided, however, that in the case of any and Transfer described above, it shall be a condition to the extent applicableTransfer that (A) during the Lock-up Period transferee executes and delivers to the parties hereto not later than one (i1) Business Day prior to any such Transfer, a written agreement, in substantially the form of such NET Power Holder’s Permitted Transferees; or this Agreement and otherwise satisfactory in form and substance to the parties hereto, (iiB) in connection with the case of a liquidationTransfer pursuant to this clause, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all no filing under Section 16(a) of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock Exchange Act reporting a reduction in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement beneficial ownership of shares of Class B Common Stock pursuant Equity Securities or any securities convertible into or exercisable or exchangeable for Equity Securities shall be required to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) made during the Lock-Up Period without restriction under this Section 7, (iias the same may be extended as described above) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iiiC) $16.00 per shareno voluntary filing with the Commission or other public report, then each NET Power Holder, together with its Permitted Transferees, may filing or announcement shall be made in respect of such Transfer any of its NET Power Holders Price-Based Shares without restriction under during this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7Up Period.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Equity Holders Agreement (HedgePath Pharmaceuticals, Inc.)
Lock-Up. In connection with the first (aand, for the avoidance of doubt, only the first) Subject to Sections 7(b) public/underwritten offering (regardless of whether such offering is a primary or secondary offering and 7(cincluding an Underwritten Shelf Takedown), each NET Power Qualified Holder agrees with that it shall not, during the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to 60 days after the extent applicable) until the end of the applicable Lock-up Period pricing (the “Lock-upUp Period”), directly or indirectly, offer, pledge, assign, encumber, announce the intention to sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, or otherwise transfer or dispose of any of their Acquired Equity Securities, Granted Equity Securities or Equity Securities issued to such Qualified Holder in connection with the Structuring Fee to any Person; provided, however, that the Lock-Up Period shall not apply to the following: (i) the Equity Securities issued to a Commitment Party in exchange for such party’s Unsecured Notes under the Plan (i.e., the 1145 exempt Equity Securities); (ii) resales of a maximum of 15% of the applicable Commitment Party’s Equity Securities as of the Closing Date pursuant to the Resale Registration Statement; (iii) a tender offer for the Equity Securities approved by the Board of Directors of the Issuer; (iv) sales to the Issuer pursuant to an authorized share repurchase program in accordance with Rule 10b5-1 under the Exchange Act; (v) Registrable Securities included in the Underwritten Shelf Takedown; (vi) transfers of Equity Securities between affiliate entities of a Commitment Party; or (vii) sales of Equity Securities pursuant to such registered offering. For the avoidance of doubt, (a) the Lock-up Up Period shall not apply to any Company InterestsEquity Securities sold under one or more exemptions from registration under the Securities Act, warrants but shall apply to sales on the Oslo Stock Exchange and (b) before the commencement of, and after the termination or other securities expiration of, the Lockup Period, there shall be no restrictions on the ability of any Qualified Holder to resell its Registrable Securities through the Resale Registration Statement in non-underwritten offerings. The Lock-Up Period may be extended for up to an additional 30 days (for an aggregate of 90 days), at the reasonable request of the Company (whether acquired in the open market, directly from the Company, upon exercise managing underwriters/ lead book-runner/ manager. The holders of any warrants or otherwise) other than General Unsecured Claims shall be subject to the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from and any other lock-up applicable to the establishment of a trading plan pursuant to Rule 10b5-1 promulgated Commitment Parties under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up PeriodRegistration Rights Agreement.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Amendment, Assignment and Joinder Agreement (Seadrill LTD)
Lock-Up. (a) Subject to Sections 7(bthe exclusions in Section 2.01(b) and 7(c), each NET Power Section 2.01(c) the Holder agrees with the Company that it, he or she shall not to Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions Lock-up restrictions set forth in Section 7(a2.01(a), any NET Power the Holder or its Permitted Transferees may Transfer the any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) it holds during the Lock-up Period Period: (i) to any direct or indirect partners, members or equity holders of the Holder, any Affiliates of the Holder or any related investment funds or vehicles controlled or managed by such NET Power Holder’s Permitted TransfereesPersons or their respective Affiliates; or (ii) by gift to a charitable organization; (iii) with the prior written consent of PubCo; (iv) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof offer, takeover offer, scheme of arrangement or other similar transaction which results in all of the CompanyPubCo’s Stockholders shareholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) PubCo Shares for cash, securities or other property subsequent to the Closing Date; or (v) to the extent required by any legal or regulatory order; provided that in each case of clauses (i)–(iii), if the transferee is not the Holder, such transferee will agree to be bound by the terms of this Agreement in writing, in form and substance reasonably satisfactory to PubCo.
(c) Notwithstanding The Holder also agrees and consents to the provisions set forth entry of stop transfer instructions with PubCo’s transfer agent and registrar against the Transfer of any Lock-up Shares except in Section 7(a), compliance with the retirement foregoing restrictions and to the addition of shares of Class B Common Stock pursuant a legend to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7Holder’s Lock-up Shares describing the foregoing restrictions.
(d) With For the avoidance of doubt, the Holder shall retain all of its rights as a shareholder of PubCo with respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up Period, including the right to one-third of the Price-Based vote any Lock-up Shares Beneficially Owned by such NET Power Holder (subject to the other provisions hereof) and its Permitted Transferees, in each case, in any dividends or other distributions declared on the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”.
(e) during During the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer certificate evidencing any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during shall be stamped or otherwise imprinted with a legend in substantially the Lockfollowing form, in addition to any other applicable legends: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-up Period without restriction under this Section 7.
UP AGREEMENT, DATED AS OF FEBRUARY 23, 2024, BY AND AMONG XXXXXXXX XXXXXX CORP. AND THE REGISTERED HOLDER OF THE SECURITIES (f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter AgreementOR THE PREDECESSOR IN INTEREST TO THE SECURITIES), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the TimeAS AMENDED. A COPY OF SUCH LOCK-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up SharesUP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. Stryker hereby agrees that it will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to any public offering of Purchaser’s securities and ending on the date specified by Purchaser and the managing underwriter (asuch period not to exceed one hundred eighty (180) Subject days, or such other period as may be requested by Purchaser or an underwriter to Sections 7(baccommodate regulatory restrictions on (x) the publication or other distribution of research reports and 7(c(y) analyst recommendations and opinions, including, but not limited to, the restrictions contained in FINRA Rule 2711(f)(4) or NYSE Rule 472(f)(4), each NET Power Holder agrees with the Company that itor any successor provisions or amendments thereto), he (A) lend, offer, pledge, sell, contract to sell, sell any option or she shall not Transfer contract to purchase, purchase any Lock-up Shares option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of such NET Power Holder (if any and Common Stock held immediately prior to the extent applicable) until the end effectiveness of the applicable Lock-up Period registration statement for the offering or (B) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the “Lock-up”)economic consequences of ownership of any shares of Common Stock, whether any such transaction described in clause (A) or clause (B) above is to be settled by delivery of shares of Common Stock, in cash or otherwise. For the avoidance The foregoing provisions of doubt, the Lock-up this Section 2.04(b)(iii) shall not apply to the sale of any Company Interestsshares of Common Stock to an underwriter pursuant to an underwriting agreement and shall only be applicable to Stryker if all officers, warrants or other securities directors, holders of more than one percent (1%) of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their outstanding shares of Common Stock (including after giving effect to the conversion of all Convertible Securities) and Purchaser enter into, and remain bound by, similar agreements. The underwriters in connection with the offering are intended third party beneficiaries of this Section 2.04(b)(iii) and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Stryker further agrees to execute such agreements as may be reasonably requested by Purchaser or any Company Interests exchangeable for underwriter that are consistent with this Section 2.04(b)(iii) or that are necessary to give further effect hereto. In order to enforce the covenants set forth in this Section 2.04(b)(iii), Purchaser may impose stop-transfer instructions with respect to the shares of Common Stock in connection therewith) for cash, securities or other property subsequent to held by Stryker until the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence end of such amendment or modificationrestricted period.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ember Therapeutics, Inc. - Ny)
Lock-Up. (a) Subject Notwithstanding the registration rights granted pursuant to Sections 7(b) and 7(c)this Agreement, each NET Power Holder agrees with the Company that itno Investor holding Registrable Securities shall, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and prior to the extent applicableearlier of (x) until the end first anniversary of this Agreement and (ii) the Release Date,:
(i) sell or offer or contract to sell or offer, grant any option or warrant for the sale of, assign, transfer, pledge, hypothecate, or otherwise encumber or dispose of (all being referred to as a “Transfer”) any legal or beneficial interest in any of the applicable Lock-up Period Registrable Securities, or
(ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of any of the Registrable Securities, whether such swap transaction is to be settled by delivery of any Registrable Securities or other securities of any person, in cash or otherwise. Notwithstanding the foregoing limitations, the foregoing provisions of this Section 6.2 (“Lock-upUp Provisions”)) will not prevent any Transfer of any or all of the Registrable Securities, either during such holder’s lifetime or on such holder’s death, by gift, will or intestate succession, or by judicial decree, to such holder’s “family members” (as defined below) or to trusts, family limited partnerships and similar entities primarily for the benefit of such holder or such holder’s “family members”; provided, however, that in each and any such event it shall be a condition to the Transfer that the transferee execute an agreement stating that the transferee is receiving and holding the Restricted Securities subject to the Lock-Up Provisions, and other than to return the Registrable Securities to the former ownership, there shall be no further Transfer of the Registrable Securities except in accordance with the Lock-Up Provisions. For purposes of this sub-paragraph, “family member” shall mean spouse, lineal descendants, stepchildren, father, mother, brother or sister of the avoidance transferor or of doubtthe transferor’s spouse. Also notwithstanding the foregoing limitations, in the event such holder is an entity rather than an individual, the Lock-up shall Up Provisions will not apply to prevent any Company Interests, warrants Transfer of any or other securities all of the Company (whether acquired Registrable Securities to the shareholders of such entity, if it is a corporation, to the members of such entity, if it is a limited liability company, or to the partners in such entity, if it is a partnership; provided, however, that in each and any such event it shall be a condition to the open market, directly from Transfer that the Company, upon exercise of any warrants or otherwise) other than transferee execute an agreement stating that the transferee is receiving and holding the Registrable Securities subject to the Lock-up SharesUp Provisions, and other than to return the Registrable Securities to the former ownership, there shall be no further Transfer of the Restricted Securities. Nothing in this Section 7 6.2 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during Registrable Securities to ACN Holding LLC or to, between and among its members and the Lock-Up Period.
(b) Notwithstanding holders of the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares equity interests of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidationmembers, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.the
Appears in 1 contract
Samples: Registration Rights Agreement (Courtside Acquisition Corp)
Lock-Up. From the Effective Date until the earlier of the Final Closing Time or the termination of this Agreement in accordance with its terms, no Magiclytics Shareholder will, directly or indirectly (a) Subject to Sections 7(boffer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) and 7(c), each NET Power Holder agrees with any of the Magiclytics Shares held by such Magiclytics Shareholder which the Company that ithas a right to acquire or which may be acquired by the Company hereunder, he or she shall not Transfer any Lock-up being the total Magiclytics Shares of such NET Power Holder as set forth in Exhibit A in the columns entitled “Closing Magiclytics Shares” and “Call Magiclytics Shares” (if any as to each Magiclytics Shareholder individually, and to the extent Magiclytics Shareholders collectively, as applicable) until the end of the applicable Lock-up Period (, the “Lock-upUp Shares”). For ; (b) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the avoidance economic benefits or risks of doubt, ownership of the Lock-up Up Shares held by such Magiclytics Shareholder, whether any such transaction is to be settled by delivery of Magiclytics Shares or other securities, in cash or otherwise; or (c) publicly disclose the intention to do any of the foregoing. Magiclytics covenants and agrees that it and its transfer agent, if any, shall decline to register any transfer of Magiclytics Shares if such transfer would constitute a violation or breach of this Agreement and to imprint on any certificate representing any Lock-Up Shares a legend describing the restrictions contained herein or customarily notate within the transfer agent records if shares are held in book entry form, substantially in the form as follows: “THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN COMPLIANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER OF THE SHARES AND CERTAIN OTHER PARTIES. THE SECRETARY OF THE COMPANY WILL, UPON WRITTEN REQUEST, FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF WITHOUT CHARGE.” Each Magiclytics Shareholder hereby authorizes Magiclytics and its transfer agent, if any, to place stop-transfer restrictions on the stock register and other records relating to any Lock-Up Shares. The provisions of this Section 6.12 shall not apply to any Company Interests, warrants sales or other securities transfers of Magiclytics Shares to the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days provisions of the occurrence of such amendment or modificationthis Agreement.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Share Exchange Agreement (Tongji Healthcare Group, Inc.)
Lock-Up. In connection with any underwritten offering, each Sponsor, whether or not participating in the offering, agrees to enter into customary agreements restricting the public sale or distribution of equity securities of Zimmer (including sales pursuant to Rule 144 under the Securities Act) to the extent required in writing by the lead managing underwriter(s) with respect to an applicable underwritten offering during the period commencing on the date of the “pricing” of such underwritten offering and continuing for not more than sixty (60) days after the date of the “final” prospectus (or “final” prospectus supplement if the underwritten offering is made pursuant to a Underwritten Shelf Offering), pursuant to which such underwritten offering shall be made, or such lesser period as is required by the lead managing underwriter(s). Any discretionary waiver or termination of the requirements under the foregoing provisions made by the applicable underwriter(s) shall apply equally to each Sponsor. Notwithstanding the foregoing, certain of each Sponsor’s Affiliates, Investment Funds and other platforms trade securities and syndicated bank debt and originate loans and nothing herein shall restrict the ability of such Affiliates, Investment Funds and other platforms (in each case, other than the parties to this agreement) to trade securities and syndicated bank debt and originate loans in the ordinary course of business. In addition to, and without limitation of, the foregoing, notwithstanding anything in this Section 4.4 to the contrary:
(a) Subject to Sections 7(b(i) this Section 4.4 and 7(c), each NET Power Holder agrees any lock-up agreement executed in accordance with the Company that it, he or she this Section 4.4 shall not Transfer in any Lock-up Shares way limit the activities of such NET Power Holder Gxxxxxx, Sxxxx & Co., its Affiliates and its Investment Funds (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in Gxxxxxx Sachs entities party to this Section 7 shall prohibit a NET Power Holder from Agreement), and (ii) Gxxxxxx, Sxxxx & Co., its Affiliates and Investment Funds (other than the establishment Gxxxxxx Sachs entities party to this Agreement) may engage in, the public sale or distribution of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer equity securities of Lock-Up Shares during the Lock-Up Period.Zimmer; and
(b) Notwithstanding the provisions set forth in this Section 7(a), 4.4 and any NET Power Holder or its Permitted Transferees may Transfer the Locklock-up Shares agreement executed in accordance with this Section 4.4 shall not in any way limit the activities of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to TPG Global, LLC, Kohlberg Kravis Rxxxxxx & Co., L.P., The Blackstone Group L.P. or any of such NET Power Holder’s Permitted Transferees; or their respective Affiliates and Investment Funds (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by other than the Board or a duly authorized committee thereof or other similar transaction which results in all of TPG entities party to this Agreement (the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a“TPG Entities”), the retirement of shares of Class B Common Stock pursuant KKR entities party to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) Agreement (the “trading share priceKKR Entities”) on and the principal exchange on which such securities are then listed or quotedBlackstone entities party to this Agreement (the “Blackstone Entities”), which as applicable). None of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the likeTPG Entities, the “NET Power Holders Price-Based Shares”) during KKR Entities or the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer Blackstone Entities shall direct or instruct any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect respective Affiliates or Investment Funds to Time-Based Lock-up Sharestake any action if such TPG Entity, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed KKR Entity or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up SharesBlackstone Entity, as applicable, would also be favorable to prohibited from taking such action itself under any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, lock-up agreement executed in accordance with this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof4.4.
Appears in 1 contract
Samples: Coordination Agreement (LVB Acquisition Holding, LLC)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Each Holder set forth on Schedule A attached hereto hereby agrees with the Company that it, he or she shall it will not Transfer any LockCovered Securities during the period commencing on the Effective Date and ending on, and including, the four-up Shares of such NET Power Holder (if any and to the extent applicable) until the end year anniversary of the applicable Lock-up Period Effective Date (the “Lock-upUp Term”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions foregoing restrictions on Transfer set forth in Section 7(a2(a), each such Holder may:
(i) Transfer Covered Securities to any NET Power Holder Permitted Transferee;
(ii) exercise any options or its Permitted Transferees warrants to purchase Covered Securities (which exercises may Transfer the Lock-up Shares of such NET Power Holder (if any and be effected on a cashless basis to the extent applicablethe instruments representing such options or warrants permit exercises on a cashless basis); provided, however, that such Holder shall otherwise comply with any restrictions on Transfer applicable to such underlying Covered Securities;
(iii) Transfer any Covered Securities issuable upon exercise of any options that expire during the Lock-up Period Up Term to the Company to satisfy tax withholding obligations as permitted by the compensation committee of the Board of Directors in its discretion pursuant to the Company’s equity incentive plans or arrangements; and
(iv) Transfer Covered Securities to the Company pursuant to any contractual arrangement in effect on the Effective Date that provides for the repurchase by the Company of the Holder’s Covered Securities in connection with the termination of such Holder’s service to the Company. provided, however, that in the case of any Transfer or distribution pursuant to Subsection 2(b)(i), (x) in each case such transferees must enter into a written agreement agreeing to be bound by this Agreement, including the restrictions on Transfer set forth in Section 2(a), and (y) such Permitted Transferee (other than a Permitted Transferee (i) to any of such NET Power Holder’s Permitted Transferees; as defined in clause (i)(B) or (C) thereof, or (ii) in connection with to whom a liquidation, merger, stock exchange, reorganization, tender offer approved by Transfer was made as part of a liquidating distribution) agrees to promptly Transfer such Covered Securities back to such Holder if such Permitted Transferee ceases to be a Permitted Transferee for any reason prior to the Board or a duly authorized committee thereof or other similar transaction which results in all end of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing DateLock-Up Term.
(c) Notwithstanding anything to the provisions contrary, the restrictions on Transfer set forth in Section 7(a), the retirement 2(a) shall automatically terminate upon consummation of shares a Change of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7Control.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price Each of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations Holders acknowledges and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as agrees that any purported Transfer of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each Covered Securities in violation of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect tonull and void ab initio, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, and the Company shall notify each NET Power not be required to register any such purported Transfer. Any Holder within two (2) business days who effects or attempts to so effect a Transfer in violation of the occurrence this Agreement will be deemed to have committed a material breach of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating its obligations to the Transfer of other Holders and to the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofhereunder.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Each Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to will not, until after the extent applicable) until date that is 180 days after the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubtClosing Date, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) offer, pledge, announce any intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any GSCAC Class A Common Stock, GSCAC Class B Common Stock, any Holdco Class B Common Units, any Holdco Class C Common Units or any Holdco Class D Common Units issued to such Holder pursuant to Section 3.01(a) of the Merger Agreement (other than any exchange of GSCAC Class B Common Stock and any such NET Power Holder’s Permitted Transferees; units for GSCAC Class A Common Stock in accordance with the Exchange Rights) or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof enter into any swap or other similar transaction which results agreement that transfers, in all whole or in part, any of the Company’s Stockholders having the right to exchange their shares economic consequences of Common Stock (including ownership of any Company Interests exchangeable for shares of Common Stock in connection therewith) for cashsuch securities, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which whether any such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares transaction described in the foregoing clause (i) or (i.e.ii) above is to be settled by delivery of such securities, up cash or otherwise, other than any such transfer or disposition to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its a Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares Transferee (as defined in the Sponsor Letter Holdco Sub LLC Agreement, “Sponsor Time-Based Lock-up Shares”); provided that (x) such transfer or disposition must be made in accordance with the Holdco Sub LLC Agreement; (y) such Holder must promptly deliver to GSCAC notice of such transfer with such Permitted Transferee’s written agreement to be bound by this Section 6 as a Holder hereunder and to transfer the applicable securities back to the Holder if it shall cease at any Sponsor Party time prior to such 180th day to be a Permitted Transferee of such Holder and (z) any such securities that are transferred to a Permitted Transferee who ceases to qualify as such shall be returned to the applicable Holder. Notwithstanding the foregoing and anything to the contrary contained in this Agreement or in the Transaction Documents (as defined in the Sponsor Letter Merger Agreement), are directly if any “lock-ups” applicable to GSC Secondary Interest Fund, LLC, any Holder, any other holder of CEH Units, any holder of equity interests in Holdco Sub or indirectly (by waiverany holder of Equity Securities issued pursuant to an issuance of Equity Securities of GSCAC at or prior to the Closing with gross proceeds not to exceed $75 million, amendment shall be amended or otherwise) released from any waived to reduce the term of the restrictions on Transfer under this Section 7 or under lock-up period to a date that is earlier than 180 days after the Sponsor Letter Agreement, as applicableClosing Date, then the Time-Based Locklock-up Shares of period applicable to each other Stockholder Party, Sponsor Party Holder (or their its Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also Transferee) shall be released in a proportionate manner, and at the same time similarly reduced or timeswaived, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationcase may be.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Ceh Unitholder Consent and Release Agreement (GSC Acquisition Co)
Lock-Up. (a) Subject to Sections 7(bSection 1(b) and 7(c)below, each NET Power Holder during the Lock-up Period, the Holder, for the benefit of Parent agrees with the Company that it, he or she shall will not Transfer offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any of the Lock-up Shares of such NET Power Holder (if as defined below), enter into a transaction that would have the same effect, or enter into any and to the extent applicable) until the end swap, hedge or other arrangement that transfers, in whole or in part, any of the applicable Lock-up Period (the “Lock-up”). For the avoidance economic consequences of doubt, ownership of the Lock-up shall not apply Shares or otherwise, publicly disclose the intention to make any Company Interestsoffer, warrants sale, pledge or disposition, or to enter into any transaction, swap, hedge or other securities of the Company arrangement, or engage in any Short Sales (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwiseas defined below) other than with respect to the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from ; provided, that if the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale closing price of the Class A Parent Common Stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations reorganizations and similar transactionsrecapitalizations) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading30-trading day period commencing at least 15 days after following the Closing, exceeds (i) $12.00 per share, then each consummation of the NET Power HoldersBusiness Combination, together with its Permitted Transferees, may Transfer their Price-Based the Lock-up Shares shall be released from the lock-up.
(b) In furtherance of the foregoing, during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of Period, the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in Parent will (i) place a stop order on all the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splitsincluding those which may be covered by a registration statement, stock dividends, reorganizations, recapitalizations and (ii) notify the Parent’s transfer agent in writing of the stop order and the like, the “NET Power Holders Price-Based Shares”) during restrictions on the Lock-Up Period without restriction up Shares under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up Agreement and direct the Parent’s transfer agent not to an additional one-third of its NET Power Holders Price-Based Shares in excess of process any attempts by the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up Holder to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer resell or transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to except in compliance with this Agreement.
(c) During the contraryLock-Up Period, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for each certificate evidencing any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during shall be stamped or otherwise imprinted with a legend in substantially the Lockfollowing form, in addition to any other applicable legends: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-up Period without restriction under this Section 7UP AGREEMENT, DATED AS OF AUGUST [ ], 2024, BY AND AMONG THE ISSUER OF SUCH SECURITIES (THE “ISSUER”), THE ISSUER’S SECURITY HOLDER NAMED THEREIN AND CERTAIN OTHER PARTIES NAMED THEREIN, AS AMENDED. A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
(fd) Notwithstanding anything in this Agreement to the contraryFor purposes hereof, it is understood and agreed that“Short Sales” include, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Sponsor Letter AgreementSecurities Exchange Act of 1934, as amended (the “Sponsor Time-Based Lock-up SharesExchange Act”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (by waiver, amendment or otherwise) released from any of the restrictions including on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate mannertotal return basis), and at the same time sales and other transactions through non-US broker dealers or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationforeign regulated brokers.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power The Holder agrees with the Company that it, he or she shall not Transfer offer, sell, contract to sell, pledge, assign, grant any option, right or warrant to purchase, lend, make any short sale, enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership, or otherwise dispose of, directly or indirectly, the shares of common stock, par value $0.001 per share, of Entellus (“Entellus Common Stock”) received pursuant to the Merger Agreement (the “Locked-Up Shares”) for the period beginning on the Closing Date and continuing (i) with respect to twenty-five percent (25%) of the Locked-Up Shares, through the closing of trading on the date that is ninety (90) days after the Closing Date, (ii) with respect to an additional twenty-five percent (25%) of the Locked-Up Shares, through the closing of trading on the date that is one hundred and eighty (180) days after the Closing Date and (iii) with respect to the remaining shares, through the close of trading on the date that is three hundred sixty-five (365) days after the Closing Date (each such period, referred to as a “Lock-up Shares of such NET Power Holder (if any Up Period” and to the extent applicable) until the end of the applicable Lock-up Period (collectively as the “Lock-upUp Period”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in of Section 7(a1(a), any NET Power Holder or its Permitted Transferees may Transfer the during a Lock-up Up Period, the Holder may transfer all or a portion of the Locked-Up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree in writing to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved be bound by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes terms and conditions of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7Agreement, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess any trust for the direct or indirect benefit of the NET Power Holders Price-Based Shares described Holder or an immediate family member of the Holder; provided that the trustee of the trust agrees in writing to be bound by the foregoing clause (i) (i.e.terms and conditions of this Agreement; provided, up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7further that any such transfer shall not involve a disposition for value, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contraryHolder’s affiliates (including, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party commonly controlled or their Permitted Transferees, as applicable, shall, unless managed investment funds) provided that such person consents otherwise affiliate(s) agree in writing, also writing to be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (bound by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.the
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c)Holder agrees, each NET Power Holder agrees with during the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to 180 day period beginning on the extent applicable) until the end of the applicable Lock-up Period Closing Date (the “Lock-upUp Period”), not to offer, contract to sell or otherwise sell, dispose of, loan, pledge, grant any rights with respect to, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale (each, a “Disposition”) of any shares of Parent Common Stock. For Notwithstanding anything to the avoidance of doubtcontrary herein, the Lock-up this Agreement shall not apply to prohibit a transfer of any Company Interestsshares of Parent Common Stock by Holder, warrants or other securities (i) if such shares of Parent Common Stock were acquired by the Company (whether acquired undersigned in the open market, directly from (ii) to a family member or trust, (iii) as a bona fide gift or gifts, (iv) as a distribution to partners, members or stockholders of the Companyundersigned, upon exercise (v) pursuant to a sale of any warrants 100% of the outstanding shares of Parent Common Stock (including in connection with a tender offer for such shares or otherwiseby way of merger of Parent with another Person), or (vi) other than to an affiliated Person under common control with Holder; provided, however, that such transfers shall be permitted only if, as a precondition to such transfer, the Lock-up Shares. Nothing transferee agrees in writing to be bound by all of the terms of this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period2(a).
(b) Notwithstanding Holder understands that there will be placed on the provisions set forth certificates for the Parent Common Stock issued to Holder, or any substitutions therefor, a legend stating in substance: “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY AN “AFFILIATE” OF SECURE COMPUTING CORPORATION AND MAY ONLY BE TRANSFERRED (1) IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND (2) IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED JULY 11, 2006 BETWEEN THE REGISTERED HOLDER HEREOF, SECURE COMPUTING CORPORATION AND CIPHERTRUST, INC., A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF SECURE COMPUTING CORPORATION.” It is understood and agreed that the legend contemplated in this Section 7(a)2(b) shall be removed by delivery of a substitute certificate without such legend if Holder shall have delivered to Parent a copy of a letter from the staff of the Securities and Exchange Commission, any NET Power Holder or its Permitted Transferees may Transfer a written opinion of counsel reasonably acceptable to Parent, to the effect that such legend is not required for purposes of the 1933 Act; provided, however, it is further understood and agreed that if the Lock-up Shares Up Period has expired and Holder is not then an “affiliate” of Parent, Holder may request in writing that this legend be removed, and Parent thereafter will reissue a substitute certificate without this legend, without requiring the delivery of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; a letter or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Datewritten opinion.
(c) Notwithstanding Immediately following the provisions Closing Date, Parent and Company shall mutually prepare, and Parent shall file, a Registration Statement on Form S-3 covering the resale of all of the shares of Parent Common Stock issued to Holder pursuant to the Merger Agreement, subject to certain exceptions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7Merger Agreement.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. (a) Subject No Holder of Preferred Stock, or the Warrants, without first obtaining the prior written consent of the Corporation, during the Lock-Up Period (1) may offer, pledge, announce the intention to Sections 7(b) sell, sell, contract to sell, sell a stock short, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any shares of Preferred Stock or Conversion Shares (including without limitation, Preferred Stock or Conversion Shares which may be deemed to be beneficially owned by the Holder in accordance with the rules and 7(cregulations of the Commission), each NET Power or Warrants or Warrant Shares (including without limitation, Warrants or Warrant Shares which may be deemed to be beneficially owned by the Holder agrees in accordance with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any rules and to the extent applicable) until the end regulations of the applicable Lock-up Period Commission) (such Preferred Stock, Conversion Shares, Warrants and Warrant Shares, being hereinafter collectively referred to the “Lock-upUp Securities”). For , or (2) enter into any swap or other agreement that transfers, in whole or in part, any of the avoidance economic consequences of doubt, ownership of the Lock-up shall not apply Up Securities, whether any such transaction described in clause (1) or (2) above is to any Company Interestsbe settled by delivery of Common Stock or such other securities, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants cash or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange ActIn addition, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period, no Holder of any of the Lock-Up Securities, without the prior written consent of the Corporation, shall make any demand for or exercise any right with respect to, the registration of any Lock-up Securities or any security convertible into or exercisable or exchangeable for the Lock-Up Securities.
(b) Notwithstanding the provisions foregoing, the restrictions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder clause (if any 1) and (2) above shall not apply to the extent applicable(a) during the Lock-up Period transfers (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree to any of such NET Power Holder’s Permitted Transferees; or be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the trustee of the trust agrees to be bound in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved writing by the Board or restrictions set forth herein, and provided further that any such transfer shall not involve a duly authorized committee thereof or other similar transaction which results in all disposition for value, (iii) with the prior written consent of the Company’s Stockholders having the right Corporation, (iv) to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) an Affiliate of the Charter shall not Holder; provided such Affiliate agrees in writing to be deemed a Transfer for purposes bound by the terms hereof, or (b) the establishment of this Section 7.
(d) With respect to Priceany 10b5-Based Lock-up Shares, notwithstanding anything contained herein to 1 selling plan provided the contrary, if, following the Closing, the last initial sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which date under such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days plan occurs after the Closing, exceeds (i) $12.00 per share, then each end of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under Period. For purposes of this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreementprovision, “Sponsor Time-Based Lock-up Shares”) of immediate family” shall mean any Sponsor Party (as defined in the Sponsor Letter Agreement)relationship by blood, are directly marriage or indirectly (by waiveradoption, amendment or otherwise) released from any not more remote than first cousin. None of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement Section shall apply to securities acquired by a Holder in open market transactions or to securities acquired by a Holder before the governing documents Effective Date.
c) In furtherance of the foregoing, the Corporation, and any duly appointed transfer agent for the registration or transfer of the Lock-Up Securities and Common Stock, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Section and they are authorized to place a restrictive legend with regard to the limitations on transfer imposed by this Section on any certificate evidencing suchLock-Up Securities.
13. Sections 4.12, 4.13 and 4.17 of the SPA are hereby deleted in their entirety.
14. Sections 5.1 and 5.2 of the SPA are hereby deleted in their entirety.
15. The Company’s Registration Statement on Form S-1, declared effective on August 29, 2008, shall be allowed to lapse and the Company shall have no further obligations in respect thereof, and OpCo the Registration Rights Agreement shall terminate as the date hereof and be of no further force or effect.
16. The Company shall, by 5:00 pm on the 4th Business Day immediately following the date hereof, issue a Current Report on Form 8-K, disclosing the material terms of the transactions contemplated hereby.
17. Except as amended hereby, the SPA remains in force and effect.
Appears in 1 contract
Lock-Up. Without the prior written consent of either one of the Pamplona Key Noteholder or the L Xxxxxxxxx Key Noteholder (provided that if one of the Pamplona Key Noteholder or the L Xxxxxxxxx Key Noteholder sells or assigns a majority of its interest in its Convertible Notes to a third party, then only with the prior written consent of the other of the Pamplona Key Noteholder or the L Xxxxxxxxx Key Noteholder that did not sell or assign a majority of its interest in its Convertible Notes, provided that if both of the Pamplona Key Noteholder and the L Xxxxxxxxx Key Noteholder sell or assign a majority of its interest in its Convertible Notes, then with either such party’s prior written consent), for a period beginning upon the date of the final prospectus relating to the Initial Public Offering (the “Final Prospectus Date”) and ending eighteen (18) months following the Final Prospectus Date, neither (x) Xxxxxxxxx nor (y) any holder of Securities or Legacy Warrant Securities (in each case, other than the Pamplona Noteholders, Pamplona Warrantholders, holders of Pamplona Warrant Securities, L Xxxxxxxxx Noteholders, L Xxxxxxxxx Warrantholders and holders of L Xxxxxxxxx Warrant Securities) who, together with such Person’s Affiliates and the Permitted Transferees of such Person and such Person’s Affiliates, at such applicable time holds in the aggregate, directly or indirectly, at least five percent (5%) of the outstanding shares of Common Stock (on a fully diluted basis) (whether or not a selling shareholder pursuant to such registration statement) (the “Locked-up Holders”), in each case, shall (a) Subject offer, pledge, sell, contract to Sections 7(bsell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise Transfer, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for such Common Stock or (b) and 7(c)enter into any swap or other management that transfers to another, each NET Power Holder agrees with in whole or in part, any of the Company that iteconomic consequences of ownership of Common Stock, he whether any such transaction described in clause (a) or she shall not Transfer any Lock-up Shares (b) above is to be settled by delivery of such NET Power Holder (if any and to Common Stock or such other securities, in cash or otherwise; provided, however, that the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up foregoing restrictions shall not apply to (i) Transfers among any Company InterestsAffiliates, warrants provided that the Transferee Affiliate agrees to be bound by the terms of this Agreement, including this Section 2.1, (ii) Transfers constituting the exercise of the Junior Management Options (provided that the foregoing restrictions do apply to the equity underlying such options), or (iii) any Permitted Transfer; provided, further, that the restrictions set forth in this Section 2.1 shall terminate upon the return of proceeds in cash to each of Pamplona and L Xxxxxxxxx equal to the aggregate principal amount of the Convertible Notes owned by each of them and their Affiliates as of September [•], 2021 (including for the avoidance of doubt cash proceeds received by Pamplona or L Xxxxxxxxx, as the case may be, from any sale of the Convertible Notes, Warrants or any Registrable Securities or any cash payments on the Convertible Notes) (each, a “Cash Return Condition”). Notwithstanding the foregoing in this Section 2.1, but subject to the other terms of this Agreement, (1) Xxxxxx Xxx and (2) Xxxxxxxxx, after twelve (12) months following the Final Prospectus Date, shall each have the right to (a) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise Transfer, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for such Common Stock or (b) enter into any swap or other securities management that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock, in the aggregate, shares of Common Stock in exchange for proceeds of up to $2,500,000 (I) during any open trading window established pursuant to a bona fide xxxxxxx xxxxxxx policy of the Company or (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwiseII) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of pursuant to a trading plan on behalf of such Investor pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide Act for the Transfer transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for casheach, securities or other property subsequent to the Closing Datea “Carved-Out Transfer”).
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (iFit Health & Fitness Inc)
Lock-Up. Agreement. Each Holder agrees that it will enter into ------------------- a written agreement (atogether with all executive officers, directors and principal stockholders of the Company) Subject containing customary terms and provisions to Sections 7(b) and 7(cthe effect that, during the period of duration specified by the underwriter(s), each NET Power Holder agrees with following the effective date of a registration statement of the Company that itfiled under the Securities Act, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and it will not, to the extent applicablerequested by such underwriter(s), directly or indirectly sell, offer to sell, contract to sell, grant any option to purchase or otherwise transfer or dispose of (other than to donees who agree to be similarly bound) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company held by such Holder at any time during such period except securities included in such registration; provided, however, that (whether acquired in a) the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing agreement referenced in this -------- ------- Section 7 shall prohibit a NET Power Holder from 10 will be applicable only to the establishment first such registration statement of a trading plan pursuant the Company which covers securities to Rule 10b5-1 promulgated under be sold on its behalf to the Exchange Actpublic in an underwritten offering, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in period of duration to be specified by the underwriter(s) pursuant to this Section 7(a)10 does not exceed 180 days, and (c) each officer and director of the Company and each other holder of 5% or more of the outstanding equity securities of the Company enters into a similar agreement. Each Holder further agrees not to transfer any NET Power securities of the Company held by such Holder, either directly or indirectly, to any transferee who does not agree to be bound by the terms of this Section 10. Each Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) agrees that any attempt to effect any transfer of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all securities of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock not in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding compliance with the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price 10 will be void and of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations no force and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; effect and (ii) if any Price-Based Lock-up Shares agrees and consents to the entry of stop transfer instructions with the Company's transfer agent against the transfer of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer securities of the Company Interests Beneficially Owned held by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth such Holder except in compliance with this Agreement or the governing documents of the Company and OpCo as of the date hereofSection 10.
Appears in 1 contract
Samples: Registration Rights Agreement (Americasdoctor Com Inc)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she Zahr shall not effect any Restricted Transfer of any Parent Common Stock or Blue Owl Common Units Beneficially Owned or otherwise held by Zahr (excluding any Earnout Units) (all such securities, the “Lock-up Shares of such NET Power Holder (if any and to Up Shares”) during the extent applicable) until three years following the end of the applicable Lock-up Period Effective Date (the “Lock-upUp Period”); provided that, (x) if any OWL Principal is released from any lock-up period applicable to such OWL Principal, then Zahr and his Permitted Transferees shall have the same number of days released from his, her or its Lock-Up Period or (y) to the extent any lock-up restrictions to which any OWL Principal is subject are relaxed or otherwise waived, the lock-up restrictions to which Zahr and his Permitted Transferees are subject will be correspondingly relaxed or otherwise waived.
(b) During the Lock-Up Period, any purported Transfer of Lock-Up Shares by Zahr other than in accordance with this Agreement shall be null and void, and Parent shall refuse to recognize any such Transfer for any purpose.
(c) Notwithstanding anything to the contrary contained in this Agreement, during the Lock-Up Period Zahr may make Permitted Transfers (without the consent of Parent) of any Lock-Up Shares. For the avoidance of doubt, the Lock-up shall not apply to in connection with any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Permitted Transfer of Lock-Up Shares during Shares, (x) the restrictions and obligations contained in this Section 2 will continue to apply to such Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), Shares after any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7Shares, and (iiiy) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any the Transferee of its NET Power Holders Pricesuch Lock-Based Up Shares without restriction shall have no rights under this Section 7.
(e) With respect to Time-Based Lock-up SharesAgreement, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSEunless, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, such Transferee is a Permitted Transferee in accordance with this Section 7 Agreement and complies with the following sentence. Any Transferee of Lock-Up Shares that is a Permitted Transferee of the Transferor shall in no way limit any restrictions on or requirements relating be required, at the time of and as a condition to such Transfer, to become a party to this Agreement by executing and delivering a joinder to this Agreement, whereupon such Transferee will be treated as a Party (with the same rights and obligations as the Transferor as to the Transfer applicable Lock-Up Shares) for all purposes of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofAgreement.
Appears in 1 contract
Lock-Up. (a) Subject The Contributor Parties hereby irrevocably agree, without the prior written consent of Acquiror Parent, not to, directly or indirectly, (i) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to Sections 7(bresult or would be reasonably likely to result in the disposition by any Person at any time in the future of) and 7(cany shares of Acquiror Parent Class B Common Stock or Acquiror Units issued as Closing Equity Consideration or Indemnity Equity (or any shares of Acquiror Parent Class A Common Stock acquired in exchange therefor), each NET Power Holder agrees with (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the Company that iteconomic benefits or risks of ownership of any shares of Acquiror Parent Class B Common Stock or Acquiror Units issued as Closing Equity Consideration or Indemnity Equity (or any shares of Acquiror Parent Class A Common Stock acquired in exchange therefor), he whether any such transaction described in clause (i) or she shall not Transfer (ii) above is to be settled by delivery of any Lock-up Shares such shares of such NET Power Holder Acquiror Parent Class B Common Stock, Acquiror Units (if or any and shares of Acquiror Parent Class A Common Stock acquired in exchange therefor) or other Equity Interests, other securities, in cash or otherwise, (iii) deliver a notice of redemption pursuant to the extent applicable) until Acquiror LLC Agreement with respect to the end of the applicable Lock-up Period Indemnity Units or Indemnity Stock (the “Lock-up”). For and, for the avoidance of doubt, Acquiror shall have no obligation to redeem such Indemnity Units or Indemnity Stock) or (iv) publicly disclose the Lock-up shall not apply intention to do any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Periodforegoing.
(b) Notwithstanding Other than with respect to the provisions Indemnity Equity, the restrictions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer 7.16(a) shall terminate on the Lockdate that is one-up Shares of such NET Power Holder hundred eighty (if any and to the extent applicable180) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to days following the Closing Date.
(c) Notwithstanding the provisions The restrictions set forth in Section 7(a), 7.16(a) shall terminate with respect to an Indemnity Unit or share of Indemnity Stock upon the retirement removal of the Indemnity Legend for such Indemnity Unit or shares of Class B Common Indemnity Stock by the Transfer Agent or the Acquiror pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 710.7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Contribution Agreement (Solaris Oilfield Infrastructure, Inc.)
Lock-Up. Each Note Holder and Option Holder (aother than Mxxxxx Sxxxxxx & Co. Incorporated) Subject agrees that it will not, until after the date that is 180 days after the Closing Date (as defined in the Merger Agreement): (i) offer, pledge, announce any intention to Sections 7(bsell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of GSCAC Class A Common Stock, any shares of GSCAC Class B Common Stock or any Holdco Class B Common Units, in each case, issued to such Note Holder or Option Holder (or their respective Designees pursuant to Section 7(j) and 7(cbelow), each NET Power Holder agrees as the case may be, in connection with the Company Payoff Consideration or (ii) enter into any swap or other agreement that ittransfers, he in whole or she in part, any of the economic consequences of ownership of any such securities, whether any such transaction described in clause (i) or (ii) of this Section 4(e) is to be settled by delivery of any such securities, cash or otherwise; provided, however, that none of the foregoing shall not Transfer restrict (A) any Locktransfer to any Designee (as defined in Section 7(j) below), (B) the exchange of any shares of GSCAC Class B Common Stock and Holdco Class B Units into GSCAC Class A Common Stock pursuant to an exercise of the Exchange Rights, (C) any exercise of the TCW/MS Contingent Warrants or (D) any reclassification of Holdco Class C Common Units or Holdco Class D Common Units into Holdco Class B Common Units in accordance with the terms of the Holdco Sub LLC Agreement. Notwithstanding the foregoing and anything to the contrary contained in this Consent or in the Transaction Documents (as defined in the Merger Agreement), if any “lock-ups” applicable to GSC Secondary Interest Fund, LLC, any CEH Holder, any other holder of CEH Units (as defined in the Merger Agreement), any holder of equity interests in Holdco Sub or any holder of Equity Securities issued pursuant to a GSCAC Equity Raise shall be amended or waived to reduce the term of the lock-up Shares of such NET Power Holder (if any and period to a date that is earlier than 180 days after the Closing Date, then the lock-up period applicable to the extent applicableNote Holders and Option Holders (or their respective Designees pursuant to Section 7(j) until below) pursuant to this Section 4(e) shall be similarly reduced or waived, as the end of the applicable Lock-up Period (the “Lock-up”)case may be. For the avoidance of doubt, the Lock-up shall not apply to any Company Interestsnone of Mxxxxx Sxxxxxx & Co. Incorporated, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan its Designees pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(bSection 7(j) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder below or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved shall be bound by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 74(e).
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Consent, Exchange and Preemptive Rights Agreement (GSC Acquisition Co)
Lock-Up. 5.4.1 Seller agrees that in connection with the IPO, the managing underwriter may, during the period commencing on the IPO Closing Date until the date specified by such managing underwriter (the “Lock-up Period”), restrict holders of shares of Common Stock, without the prior written consent of such managing underwriter, from (a) Subject offering, pledging, selling, contracting to Sections 7(b) and 7(csell, granting any option or contract to purchase, purchasing any option or contract to sell, hedging the beneficial ownership of or otherwise disposing of, directly or indirectly, any shares of Common Stock or any securities convertible into, exercisable for or exchangeable for shares of Common Stock (whether such shares or any such securities are then owned by such holder or are thereafter acquired), each NET Power Holder agrees with or (b) entering into any swap or other arrangement that transfers to another, in whole or in part, any of the Company that it, he or she shall not Transfer any Lock-up Shares economic consequences of ownership of such NET Power Holder securities, whether any such transaction described in clause (if any and a) or (b) above is to the extent applicable) until the end be settled by delivery of the applicable Lock-up Period Common Stock or such other securities, in cash or otherwise (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) 5.4.2 Notwithstanding the provisions set forth Section 5.4.1, in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during no event shall the Lock-up Period exceed one hundred eighty (i180) days with respect to the Buyer Common Shares, except for the limited circumstances provided in the Lock-up Agreement, and, in the event and to the extent that the managing underwriter or Buyer permits varying Lock-up Periods with respect to the holders of shares of Common Stock, the Buyer Common Shares shall be subject to the shortest Lock-up Period permitted to any holder of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including other than Xxxxxx Xxxxx) by the managing underwriter and Buyer.
5.4.3 Notwithstanding anything to the contrary contained in this Section 5.4, the Buyer Common Shares shall be released from any Company Interests exchangeable for Lock-up in the event and to the extent that the managing underwriter or Buyer permits any discretionary waiver or termination of the restrictions of any Lock-up pertaining to any officer, director or any other holder of shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Datethan Xxxxxx Xxxxx.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Purchase Agreement (LGI Homes, Inc.)
Lock-Up. (a) Subject Notwithstanding anything herein to Sections 7(b) the contrary, and 7(c)without regard to the filing or effectiveness of any Registration Statement pursuant hereto, each NET Power Holder agrees with that, for a period beginning on the Company Effective Time and ending on the date that it, he or she shall not Transfer any is 180 days after the Effective Date (the “First Lock-up Shares Period”), such Holder will not, without the prior written consent of Parent, directly or indirectly, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, or file (or participate in the filing of) a registration statement with SEC (other than the participation in the filing of a Registration Statement as contemplated by Section 2) in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act with respect to, any Parent Common Stock or any securities convertible into or exercisable or exchangeable for Parent Common Stock, or warrants or other rights to purchase Parent Common Stock, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Parent Common Stock or any securities convertible into or exercisable or exchangeable for Parent Common Stock, or warrants or other rights to purchase Parent Common Stock, whether any such transaction is to be settled by delivery of Parent Common Stock or such other securities, in cash or otherwise, or (iii) publicly announce an intention to effect any transaction specified in clause (i) or (ii). In addition, notwithstanding the provisions hereof or the effectiveness of such NET Power Holder Registration Statement, (if any and to the extent applicablex) until between the end of the applicable First Lock-up Up Period and the second anniversary of the Effective Date (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Second Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a”), such Holder will not, without prior written consent of Parent, during any NET Power Holder three-month period, directly or its Permitted Transferees may Transfer indirectly, take any actions described in subparagraphs (i), (ii) and (iii) of the Lock-up Shares of such NET Power Holder (if any and foregoing sentence, to the extent applicablethat such action relates to more than 20% of the number of shares of Parent Common Stock such Holder received as consideration for the Merger (including shares deposited in escrow pursuant to the Merger Agreement); and (y) during after the end of the Second Lock-up Period Up Period, such Holder will not, without prior written consent of Parent, during any three-month period, directly or indirectly, take any actions described in subparagraphs (i), (ii) and (iii) of the foregoing sentence, to the extent that such action relates to more than 40% of the number of shares of Parent Common Stock such Holder received as consideration for the Merger (including shares deposited in escrow pursuant to the Merger Agreement); provided, however, that the foregoing restrictions shall not prevent a Holder that is an investment fund from distributing its shares of Parent Common Stock to its partners or members who agree to similarly bound; provided further, if the effectiveness of any Registration Statement is suspended by Parent pursuant to Section 2(c) for more than 60 days during any three month period, any Parent Common Stock that absent such suspension could have been sold during such three month period, may be carried forward and sold in the immediately succeeding three month period without regard to any percentage limitations otherwise applicable to such succeeding three month period. Notwithstanding the foregoing, the provisions of this Section 7 will expire upon the earlier of (i) to any the closing of such NET Power Holder’s Permitted Transferees; a merger transaction in which the stockholders of Parent would receive cash or securities of another entity with a market capitalization at the date of closing of at least $1 billion and (ii) in connection with the closing of a liquidation, merger, stock exchange, reorganization, tender offer approved for Parent Common Stock that is supported by the Board board of directors of Parent; and any vote by Holder in favor of such merger transaction or a duly authorized committee thereof or other similar transaction which results in all any tender of the CompanyHolder’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Parent Common Stock pursuant to Section 4.3(b) of the Charter such tender offer shall not be deemed a Transfer for purposes violation of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price 7 regardless of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which whether such securities transactions are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this consummated. This Section 7 in an amount up to one-third will survive the expiration or termination of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7Agreement.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) During the period commencing on the Closing Date and 7(c), each NET Power Holder agrees with continuing for 180 days after the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period Closing Date (the “Lock-upUp Period”), the Holder shall not, with respect to any shares of common stock, par value $0.01 per share, of Parent (the “Parent Common Stock”) issued pursuant to the terms of the Merger Agreement that are Beneficially Owned by the Holder (such shares of Parent Common Stock, the “Lock-Up Shares”), (a) offer, pledge, sell, contract to sell, grant any option, right or warrant to purchase, give, assign, hypothecate, pledge, encumber, grant a security interest in, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of (including through any hedging or other similar transaction) any economic, voting or other rights in or to the Lock-Up Shares, or otherwise transfer or dispose of, directly or indirectly, or (b) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Shares (any such transaction described in clause (a) or (b) above, a “Lock-Up Share Transfer”). For Notwithstanding the avoidance of doubtforegoing, (i) the Lock-up restrictions set forth in this Section 4.2 shall not apply to (A) any Company InterestsLock-Up Share Transfer to one or more Affiliates of the Holder (1) who is a party to an agreement with Parent with substantially similar terms as this Section 4.2 or (2) if, warrants as a condition to such Lock-Up Share Transfer, the recipient agrees in writing to be bound by this Section 4.2 and delivers a copy of such executed written agreement to Parent prior to the consummation of such transfer, (B) any Lock-Up Share Transfer with the prior written consent of Parent (which consent may be granted or withheld by Parent in its sole discretion), or (C) any Lock-Up Share Transfer made in connection with any tender offer, exchange offer, merger, consolidation or other securities similar transaction approved or recommended by the Parent Board or a committee thereof; (ii) the Holder may, during the first 90 days following the Closing Date, engage in one or more Lock-Up Share Transfers so long as, following any such Lock-Up Share Transfer, the Holder continues to Beneficially Own 85% of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Up Shares. Nothing in this Section 7 shall prohibit a NET Power ; and (iii) the Holder from may, during the establishment period beginning on the 91st day after the Closing Date and ending on the last day of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth , engage in Section 7(a), any NET Power Holder one or its Permitted Transferees may Transfer the more Lock-up Shares of Up Share Transfers so long as, following any such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a)Up Share Transfer, the retirement Holder continues to Beneficially Own 70% of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under Shares; and (iv) the restrictions set forth in this Section 74.2 shall be subject to, (ii) $14.00 per shareand the rights of Parent to enforce this Section 4.2 shall be subordinate to, then each NET Power the rights of Credit Suisse AG pursuant to the terms of that certain Third Amended and Restated Demand Promissory Note and Collateral Agreement, dated as of February 26, 2019, by and among the Holder, together Xxxxxxx Xxxxxxxxx and Credit Suisse AG, as amended prior to the date of this Agreement, in all respects. In connection with its Permitted Transferees, may any Lock-Up Share Transfer up pursuant to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 74.2, and Parent agrees to not take any action that would cause such Lock-Up Share Transfer to be subject to requirements imposed by any “fair price,” “moratorium,” “control share acquisition,” “business combination” or any other anti-takeover statute or similar statute enacted under applicable Law (iii) $16.00 per share“Takeover Laws”), then each NET Power and, at the request of the Holder, together with will take all reasonable steps within its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
control to exempt (eor ensure the continued exemption of) With respect to Time-Based such Lock-up Shares, notwithstanding anything contained herein to Up Share Transfer from the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares Takeover Laws of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject state that purport to apply to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationtransaction.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Voting and Support Agreement (Pioneer Natural Resources Co)
Lock-Up. (a) Subject to Sections 7(bFor a period of six (6) and 7(c), each NET Power Holder agrees with months from the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period Closing Date (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Initial Lock-Up Period”), without the prior written approval of Buyer, Seller shall not Dispose of (i) any of the Stock Consideration, together with any shares of Buyer Common Stock issued in respect thereof as a result of any stock split, stock dividend, share exchange, merger, consolidation or similar recapitalization, and (ii) any Buyer Common Stock issued as (or issuable upon the exercise of any warrant, right or other security that is issued as) a dividend or other distribution with respect to, or in exchange or in replacement of, the shares of Buyer Common Stock described in clause (i) of this sentence.
(b) Notwithstanding For a period of six (6) months from and including the provisions set forth in Section 7(adate of expiration or termination of the Initial Lock-Up Period (the “Subsequent Lock-Up Period”), any NET Power Holder or its Permitted Transferees may Transfer without the Lock-up Shares prior written approval of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period Buyer, Seller shall not Dispose of (i) to fifty percent (50%) of the Stock Consideration, together with any shares of such NET Power Holder’s Permitted Transferees; Buyer Common Stock issued in respect thereof as a result of any stock split, stock dividend, share exchange, merger, consolidation or similar recapitalization, and (ii) in connection with a liquidationany Buyer Common Stock issued as (or issuable upon the exercise of any warrant, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof right or other similar transaction which results security that is issued as) a dividend or other distribution with respect to, or in all of exchange or in replacement of, the Company’s Stockholders having the right to exchange their shares of Buyer Common Stock described in clause (including any Company Interests exchangeable for shares i) of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Datethis sentence. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934.
(c) Notwithstanding In the provisions event that Buyer executes a Naked License prior to the end of the Initial Lock-Up Period, the Initial Lockup Period shall immediately terminate on the execution date of such Naked License; provided, however, that the selling restrictions and limitations set forth in Section 7(a)5.14 applicable during and following the Subsequent Lock-Up Period, the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7remain applicable.
(d) With respect to Price-Based Lock-up Shares, notwithstanding Notwithstanding anything contained herein to the contrarycontrary herein, if, Buyer shall take all actions in accordance with applicable law that may be required to ensure the transferability of the Stock Consideration following the Closing, the last sale price expiration of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the applicable restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise Dispositions set forth in this Agreement or Sections 5.13(a) and/or 5.13(b), including the governing documents removal of restrictive legends on any share certificates representing any portion of the Company and OpCo as of the date hereofStock Consideration.
Appears in 1 contract
Samples: Stock Purchase Agreement (Alnylam Pharmaceuticals, Inc.)
Lock-Up. The Registered Holder hereby agrees to that, in the event of a public offering of the Company's securities, the Registered Holder will not directly or indirectly sell or in any way transfer any shares of Common Stock issued pursuant to the exercise of this Warrant held by the Holder, or any right or interest in any shares issued pursuant to exercise of this Warrant, for a period of six (a6) Subject months after the date upon which the registration statement with respect to Sections 7(bsuch public offering of the Company's securities is declared effective (the "Effective Date") by the Securities and 7(c)Exchange Commission, each NET Power Holder unless the Company, in its sole discretion, agrees with to the Company that it, he sale of all or she shall not Transfer any Lock-up Shares part of such NET Power Holder securities at an earlier date. In addition, (if i) any and to the extent applicable) until the end sales of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company shall be effected through the lead underwriter of such public offering for the period commencing on the date of issuance and ending six (whether acquired 6) months after the effective date of a registration statement relating to such public offering, and (ii) the Registered Holder shall compensate such underwriter in accordance with its customary compensation practices. The parties hereto agree that the open market, directly from above-referenced underwriter is intended to be a third-party beneficiary of this Agreement and that no modification of the Company, "lock-up" provisions contained in this Section may be made without the prior written consent of such underwriter. The foregoing restrictions shall apply to any shares issued upon exercise of this Warrant and any warrants or otherwise) other than certificate representing such shares shall carry substantially the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Actfollowing legend, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection insofar as is consistent with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their applicable law: "The shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent represented by this Certificate are subject to the Closing Date.
(c) Notwithstanding the provisions restrictions on transfer set forth in Section 7(a), the retirement of shares of Class B a Common Stock pursuant to Section 4.3(b) Purchase Warrant dated as of ________ __, 2002. A copy of the Charter shall not be deemed a Transfer Common Stock Purchase Warrant is available for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to inspection without charge at the contrary, if, following the Closing, the last sale price office of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as Treasurer of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7Company.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof."
Appears in 1 contract
Samples: Warrant Agreement (Rxbazaar Inc)
Lock-Up. (a) Subject to Sections 7(b) and 7(c)Holder agrees, each NET Power Holder agrees with during the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to 90 day period beginning on the extent applicable) until the end of the applicable Lock-up Period Closing Date (the “Lock-upUp Period”), not to offer, contract to sell or otherwise sell, dispose of, loan, pledge, grant any rights with respect to, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale (each, a “Disposition”) of any shares of Parent Common Stock. For Notwithstanding anything to the avoidance of doubtcontrary herein, the Lock-up this Agreement shall not apply to prohibit a transfer of any Company Interestsshares of Parent Common Stock by Holder, warrants or other securities (i) if such shares of Parent Common Stock were acquired by the Company (whether acquired undersigned in the open market, directly from (ii) to a family member or trust, (iii) as a bona fide gift or gifts, (iv) as a distribution to partners, members or stockholders of the Companyundersigned, upon exercise (v) pursuant to a sale of any warrants 100% of the outstanding shares of Parent Common Stock (including in connection with a tender offer for such shares or otherwiseby way of merger of Parent with another Person), or (vi) other than to an affiliated Person under common control with Holder; provided, however, that such transfers shall be permitted only if, as a precondition to such transfer, the Lock-up Shares. Nothing transferee agrees in writing to be bound by all of the terms of this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period2(a).
(b) Notwithstanding Holder understands that there will be placed on the provisions set forth certificates for the Parent Common Stock issued to Holder, or any substitutions therefor, a legend stating in substance: “THE SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED JULY 11, 2006 BETWEEN THE REGISTERED HOLDER HEREOF, SECURE COMPUTING CORPORATION AND CIPHERTRUST, INC., A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF SECURE COMPUTING CORPORATION.” It is understood and agreed that the legend contemplated in this Section 7(a)2(b) shall be removed by delivery of a substitute certificate without such legend if Holder shall have delivered to Parent a copy of a letter from the staff of the Securities and Exchange Commission, any NET Power Holder or its Permitted Transferees may Transfer a written opinion of counsel reasonably acceptable to Parent, to the effect that such legend is not required for purposes of the 1933 Act; provided, however, it is further understood and agreed that if the Lock-up Shares Up Period has expired, Holder may request in writing that this legend be removed, and Parent thereafter will reissue a substitute certificate without this legend, without requiring the delivery of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; a letter or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Datewritten opinion.
(c) Notwithstanding Immediately following the provisions Closing Date, Parent and Company shall mutually prepare, and Parent shall file, a Registration Statement on Form S-3 covering the resale of all of the shares of Parent Common Stock issued to Holder pursuant to the Merger Agreement, subject to certain exceptions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7Merger Agreement.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b9(b) and 7(c9(c), each NET Power Holder Stockholder Party agrees with that, without the Company that Company’s prior written consent, it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a9(a), any NET Power Holder Stockholder Party or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power HolderStockholder Party’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a9(a), (i) any shares of Common Stock issued to any Stockholder Party upon exercise of any of such Stockholder Party’s warrants to purchase Common Stock of the Company shall be deemed to be Lock-up Shares Beneficially Owned by such Stockholder Party as of the Closing and such exercise shall not be deemed a Transfer for purposes of this Section 9 and (ii) neither the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) 6.3 of the Charter nor the retirement of Class C Common Stock pursuant to Section 6.4 of the Charter shall not be deemed a Transfer for purposes of this Section 79.
(d) With respect to Price-Based Lock-up Shares, notwithstanding Notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock equals or exceeds twelve dollars (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions$12.00) per share (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, quoted for any 20 twenty (20) trading days within any 30 consecutive thirty (30) trading-day period commencing at least six months one hundred fifty (150) days after the date of Closing, exceeds $12.00 per share, then the NET Power HoldersNPA Sponsor, together with their its Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7in a cumulative aggregate amount of shares of Common Stock representing up to one-third (1/3) of the sum of the number of Lock-up Shares Beneficially Owned by NPA Sponsor and its Permitted Transferees and the number of Stockholder Shares underlying the unexercised PubCo Warrants held by NPA Sponsor, in each case, as of immediately following the Closing (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like).
(fe) Notwithstanding anything in this Agreement contained herein to the contrary, it is understood and agreed that, (i) if any Time-Based the Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter AgreementPeriod shall expire, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of and each other Stockholder Party, Sponsor Party or their together with its Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also shall be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject entitled to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any Transfer all of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicableimmediately upon the date on which the Company completes a liquidation, would also be favorable to any merger, capital stock exchange, reorganization or other similar transaction that results in all of the NET Power Holders, each such NET Power Holder shall be afforded Company’s stockholders having the benefits of, and this Agreement shall be deemed amended or modified right to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days exchange their shares of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer Common Stock of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable for cash, securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofother property.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power The Holder agrees with the Company that it, he or she shall not Transfer offer, sell, contract to sell, pledge, assign, grant any option, right or warrant to purchase, lend, make any short sale, enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership, or otherwise dispose of, directly or indirectly, the shares of common stock, par value $0.001 per share, of Entellus (“Entellus Common Stock”) received pursuant to the Merger Agreement (the “Locked-Up Shares”) for the period beginning on the Closing Date and continuing (i) with respect to twenty-five percent (25%) of the Locked-Up Shares, through the closing of trading on the date that is ninety (90) days after the Closing Date, (ii) with respect to an additional twenty-five percent (25%) of the Locked-Up Shares, through the closing of trading on the date that is one hundred and eighty (180) days after the Closing Date and (iii) with respect to the remaining shares, through the close of trading on the date that is three hundred sixty-five (365) days after the Closing Date (each such period, referred to as a “Lock-up Shares of such NET Power Holder (if any Up Period” and to the extent applicable) until the end of the applicable Lock-up Period (collectively as the “Lock-upUp Period”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in of Section 7(a1(a), any NET Power Holder or its Permitted Transferees may Transfer the during a Lock-up Up Period, the Holder may transfer all or a portion of the Locked-Up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree in writing to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved be bound by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes terms and conditions of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7Agreement, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess any trust for the direct or indirect benefit of the NET Power Holders Price-Based Shares described Holder or an immediate family member of the Holder; provided that the trustee of the trust agrees in writing to be bound by the foregoing clause (i) (i.e.terms and conditions of this Agreement; provided, up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7further that any such transfer shall not involve a disposition for value, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contraryHolder’s affiliates (including, ifif applicable, following commonly controlled or managed investment funds) provided that such affiliate(s) agree in writing to be bound by the Closingterms and conditions of this Agreement, (iv) pursuant to a tender or exchange offer publicly recommended by Entellus’s board of directors, (v) pursuant to a merger, stock sale, consolidation or other transaction publicly recommended by the trading share price on the principal exchange on which such securities are then listed Entellus’s board of directors, (vi) by will or quoted, which as other testamentary document or by intestacy or (vii) distributions of the date hereof is Locked-Up Shares to current or former members, partners, stockholders or subsidiaries of Holder provided that such members, partners, stockholders or subsidiaries agree in writing to be bound by the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date terms and conditions of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement. For purposes hereof, “Sponsor Time-Based Lock-up Shares”) of immediate family” shall mean any Sponsor Party (relationship by blood, marriage or adoption, not more remote than first cousin, and “affiliate” shall mean, as defined in the Sponsor Letter Agreement)applied to any entity, are any other entity directly or indirectly controlling, controlled by, or under direct or indirect common control with, such entity (for purposes hereof, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by waiver, amendment contract or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification).
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. The Wealth Generators Members agree that each individually shall not transfer, offer, pledge, sell, contract to sell, grant any options for the sale of or otherwise dispose of, directly or indirectly, any INVU Shares through one (a1) Subject to Sections 7(b) and 7(c)year from the Closing Date. If requested by an underwriter of Common Stock, each NET Power Holder agrees Wealth Generators Members will reaffirm the agreement set forth in this Section 1.5 in a separate writing in a form satisfactory to such underwriter. INVU may impose stop-transfer instructions with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and respect to the extent applicable) until INVU Shares. Notwithstanding the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubtforegoing, the Lock-up restrictions set forth in this Section 1.5 shall not apply to any Company Interests, warrants or other securities (A) the sale by a Wealth Generators Member of up to 20% per month of the Company INVU Shares held by such Wealth Generators Member commencing on the six (whether acquired in the open market6) month anniversary of this Agreement, directly from the Company, upon exercise of any warrants or otherwise(B) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit transfers (i) as a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Actbona fide gift or gifts, provided that such plan does not provide for the Transfer of Lock-Up Shares during donee or donees thereof agree to be bound in writing by the Lock-Up Period.
(b) Notwithstanding the provisions restrictions set forth in Section 7(a)herein, any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) to any trust for the direct or indirect benefit of the Wealth Generators Member or the immediate family of the Wealth Generators Member, provided that the trustee of the trust agrees to be bound in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved writing by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions restrictions set forth in Section 7(a)herein, the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter and provided further that any such transfer shall not be deemed involve a Transfer disposition for value. For purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares1.5, notwithstanding anything contained herein “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. All certificates representing the INVU Shares deliverable to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied Wealth Generators Members pursuant to this Agreement and any certificates subsequently issued with respect thereto or in substitution therefor shall bear a legend substantially as follows, in addition to any legend INVU determines is required pursuant to any applicable legal requirement including the standard legend required under the Securities Act of 1933, as amended: "The shares represented by this certificate may not be offered, sold, pledged, transferred or otherwise disposed of except in accordance with the requirements of the Securities Act of 1933, as amended, and the other conditions specified in that certain Contribution Agreement dated as of _____, 2017, copies of which agreements the Company will furnish, without charge, to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any holder of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationcertificate upon written request therefor.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof."
Appears in 1 contract
Lock-Up. 1.1 Except as expressly provided for in this Agreement, Lee (a) Subject to Sections 7(bxxcluding the Trust) and 7(c)Collxxx xxxll not, each NET Power Holder agrees with without the Company that itprior written consent of Ingrxx, he xxrectly or she shall not Transfer any Lock-up Shares of such NET Power Holder indirectly, issue, offer to sell, sell, grant an option for the purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose (if any and pursuant to the extent applicable) until the end Rule 144 of the applicable Lock-up Period (regulations under the “Lock-up”). For the avoidance of doubtSecurities Act, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the of any of their respective Lock-up Up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from , or dispose of any beneficial interest therein.
1.2 This Agreement, and all of the establishment of a trading plan pursuant restrictions relating to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during contained herein, shall terminate on that date which is the earlier of (i) ninety days after Lee xxxses to be an employee or consultant on a substantially full time basis with the Company or (ii) that date upon which 80% of the Remaining Debt has been paid to Ingrxx. Xxmediately after any termination of this Agreement pursuant to this Section, the legend imposed pursuant to Section 1.3 below shall, upon request of Lee xx Collxxx, xx applicable, be removed from any stock certificates representing the Lock-Up PeriodShares.
(b) Notwithstanding 1.3 Lee xxx Collxxx xxxerstand and agree that the provisions following legend, or such other legend as shall be in a form and substance satisfactory to Ingrxx, xxall be set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer on each certificate representing the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the respective Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described registered in the foregoing clause (i) (i.e.name of, up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreementbeneficially owned by, as applicable, then the TimeLee xx Collxxx. THE HOLDER OF THIS CERTIFICATE HAS AGREED, NOT TO DIRECTLY OR INDIRECTLY OFFER TO SELL, GRANT AN OPTION FOR THE SALE OF, ASSIGN, TRANSFER, PLEDGE, HYPOTHECATE OR OTHERWISE ENCUMBER OR DISPOSE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE, OR TO DISPOSE OF ANY BENEFICIAL INTEREST THEREIN, PURSUANT TO RULE 144 OF THE SECURITIES ACT OF 1933, AS AMENDED, OR OTHERWISE, EXCEPT (A) WITH THE PRIOR WRITTEN CONSENT OF INGRXX XXXERTAINMENT INC. OR (B) AS PERMITTED BY THAT CERTAIN LOCK-Based Lock-up Shares of each other Stockholder PartyUP AGREEMENT DATED JANUARY 8, Sponsor Party or their Permitted Transferees1996, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationENTERED INTO BY THE HOLDER HEREOF AND INGRXX XXXERTAINMENT INC.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. During the Restricted Period, each Seller understands that the Purchaser Shares, Series X Warrants and the securities underlying the Series X Warrants may not be sold, transferred, assigned, pledged, mortgaged, or otherwise disposed of or made subject to any lien or security interest, during the Restricted Period without the consent of the Company in its sole discretion, except by (a) Subject to Sections 7(b) and 7(c)transfer by will or intestate devise, each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding by lifetime gifts or transfers to family members, trusts or other family-related entities therefor for bona-fide estate and family planning purposes and (c) to the provisions set forth partners, members or shareholders of Seller; provided, however, that any transferee of the Purchaser Shares, Series X Warrants and securities underlying the Series X Warrants agrees in Section 7(a)writing to hold such Purchaser Shares, any NET Power Holder or its Permitted Transferees Series X Warrants and securities underlying the Series X Warrants in all cases subject to the terms, conditions, and restrictions of this Agreement. Purchaser may Transfer the Lockelect to release a Seller from this lock-up Shares at any time or from time to time for any reason or no reason with respect to any or all of such NET Power Holder (if Seller’s Purchaser Shares, Series X Warrants and securities underlying the Series X Warrants. No such release shall be deemed to obligate the Company to grant any and future releases to the extent applicable) during the Locka Seller or any other Seller nor shall any release granted to another Seller be deemed to obligate Purchaser to grant any future release to any Seller. In addition, each Seller agrees to execute any lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) agreement required by the lead underwriter in connection with any public offering that Purchaser may conduct while a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from Seller holds any of the restrictions on Transfer under this Section 7 or under Purchaser Shares, Series X Warrants and shares underlying the Sponsor Letter AgreementSeries X Warrants; provided, as applicable, then that any such agreement is consistent with the Time-Based Lockform of lock-up Shares of agreements generally required by underwriters. Each Seller understands that each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from certificate evidencing any of the restrictions on Transfer under this Section 7 or under Securities and securities underlying the Sponsor Letter Agreement, as applicable, then Series X Warrants will bear the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject legends substantively similar to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofbelow: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT THERETO UNDER THE SECURITIES ACT AND COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAW, OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED. THE COMPANY’S AGREEMENT WITH THE HOLDER SETS FORTH CERTAIN RESTRICTIONS ON THE HOLDER’S ABILITY TO TRANSFER SUCH SECURITIES. A COPY OF SUCH AGREEMENT IS AVAILABLE FOR INSPECTION AT THE COMPANY’S OFFICE.”
Appears in 1 contract
Samples: Conditional Stock Purchase Agreement (Scopus BioPharma Inc.)
Lock-Up. Subscriber acknowledges that the Shares will be subject to lock-up provisions (the “ Lock-up ”) contained in a Letter Agreement, to be entered into prior to the date of the preliminary prospectus in connection with the IPO between the Subscriber and the Company (the “ Letter Agreement ”). Pursuant to the Letter Agreement, the Subscriber will agree (a) Subject not to Sections 7(b) and 7(c)sell, each NET Power Holder agrees with the Company that ittransfer, he pledge, hypothecate or she shall not Transfer otherwise dispose of all or any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end part of the applicable non-Forfeiture Shares for one year following the closing of the Business Combination (the “ Lock-up Period ”) and (b) not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Forfeiture Shares until the date the applicable sales price targets set forth in Section 3.2 have been met (the ““ Forfeiture Shares Lock-upup Period ”). For After the avoidance conclusion of doubt, the Lock-up Period, the non-Forfeiture Shares shall not apply be freely transferable (subject to any Company Interests, warrants or the other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing restrictions set forth in this Section 7 shall prohibit a NET Power Holder from 5 and the establishment of a trading plan pursuant obligation to Rule 10b5forfeit the non-1 promulgated under the Exchange ActForfeiture Shares in accordance with Section 3.1, if applicable) provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.that:
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (iia) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, event the last sale price of the Class A Common Stock Company’s Ordinary Shares equals or exceeds $11.50 per share (as adjusted for stock splitsshare divisions or combination, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading30-trading day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.Period, fifty percent (50%) of the non-Forfeiture Shares shall be released from the Lock-up; and
(fb) Notwithstanding anything in this Agreement to the contraryevent the last sale price of the Company’s Ordinary Shares equals or exceeds $15.00 per share (as adjusted for stock splits, it is understood share dividends, reorganizations, recapitalizations and agreed that, (ithe like) if for any Time20 trading days within any 30-Based trading day period during the Lock-up Period, the remaining fifty percent (50%) of the non-Forfeiture Shares shall be released from the Lock-up. After the conclusion of any NET Power Holder or the Forfeiture Shares Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner Period with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor a tranche of Forfeiture Shares, and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up extent such Forfeiture Shares or Price-Based Lock-up Shareshave not been forfeited pursuant to Section 3.2, as applicable, would also be favorable to any the applicable tranche of the NET Power Holders, each such NET Power Holder Forfeiture Shares shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationfreely transferable.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Securities Purchase Agreement (Azteca Acquisition Corp)
Lock-Up. (a) Subject to Sections 7(b) Each Seller agrees that commencing on the Closing Date and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) continuing until the end day that is 180 days after the Closing Date, such Seller will not, without the prior written consent of Purchaser, directly or indirectly: (i) offer, sell, transfer, pledge, contract to sell, grant any option to purchase, make any short sale, hypothecate, pledge, transfer or otherwise dispose of or monetize the economic value of any of the applicable Lock-up Period Closing Shares received by such Seller (the “LockLocked-upUp Securities”). For ) pursuant to the avoidance of doubt, the Lock-up shall not apply terms hereof; or (ii) announce any intention to do any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Actforegoing, provided that such plan does not provide for the Transfer parties acknowledge and agree that a Seller may make a distribution of Lockthe Locked-Up Shares during the Lock-Up PeriodSecurities to its members or shareholders pursuant to Section 3.11(b).
(b) Notwithstanding the foregoing, the parties acknowledge and agree that Sellers which are entities may distribute the Locked-Up Securities to certain of their members or shareholders at the Closing. In the event that any Seller does so distribute such Locked-Up Securities, such Seller as a condition thereof, shall cause such recipient of the Locked-Up Securities to agree to be bound by the provisions set forth of this Section 3.11 in Section 7(a)a form acceptable to Purchaser, any NET Power Holder or acting reasonably, and shall deliver it to Purchaser for its Permitted Transferees may Transfer the Lock-up Shares acceptance prior to such distribution occurring. Upon Purchaser’s confirmation of receipt and acceptance of such NET Power Holder (if any and to agreement, the extent applicable) during applicable Seller may complete the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Datedistribution as contemplated herein.
(c) Notwithstanding the provisions The restrictions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to 3.11(a) and Section 4.3(b3.11(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, apply: (i) if any Time-Based Lock-up Shares Purchaser receives an offer, made to all securityholders of any NET Power Holder Purchaser, which has not been withdrawn, to enter into a transaction or Lock-up Shares (as defined arrangement, or proposed transaction or arrangement, pursuant to which, if entered into or completed substantially in the Sponsor Letter Agreementaccordance with its terms, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement)a party could, are directly or indirectly acquire an interest (by waiverincluding an economic interest) in, amendment or otherwise) released from any become the holder of, 100% of the restrictions on Transfer under this Section 7 total number of Purchaser Shares, whether by way of takeover offer, scheme of arrangement, shareholder approved acquisition, capital reduction, share buyback, securities issue, reverse takeover, dual-listed company structure or under the Sponsor Letter Agreementother synthetic merger, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party transaction or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such releasearrangement; and (ii) if any Pricein respect of transfers of Locked-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any Up Securities to affiliates of the restrictions on Transfer under Seller, any spouse, parent, child, or grandchild of the undersigned, any company, trust or other entity owned by or maintained for the benefit of the Contributor, but solely to the extent that such transferee agrees to be bound by the terms of this Section 7 or under 3.11; (iii) in respect of transfers of Locked-Up Securities to a charitable organization pursuant to a bona fide gift; (iv) if the Sponsor Letter Agreementundersigned is an individual, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner connection with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any estate planning of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationundersigned.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Contribution and Exchange Agreement (Harvest Health & Recreation Inc.)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance period of doubttwelve months from the date hereof, without the Lock-up shall not apply to any Company Interests, warrants or other securities prior written consent of the Company (whether acquired in the open market, directly from the Company, upon exercise CCP shall not, alone or through or with any other person or entity, in any manner:
(i) offer for sale, sell, pledge, or otherwise dispose of (or enter into any warrants transaction or otherwisedevice that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from common stock of the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under Company; or
(ii) make any short sales, enter into any hedging, derivative or similar transactions regarding the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up PeriodCompany's common stock.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following CCP may sell or otherwise transfer the Closing, Company's common stock to an affiliate (as such term is defined in Rule 144 promulgated under the last sale price Securities Act) of CCP (an "CCP Affiliate") without the prior written consent of the Class A Common Stock (as adjusted for stock splitsCompany; provided, stock dividends, reorganizations, recapitalizations and similar transactions) (however that the “trading share price”) on CCP Affiliate agrees to be bound by the principal exchange on which such securities are then listed or quoted, which as provisions of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 74.
(ec) With respect to Time-Based Lock-up Shares, notwithstanding Notwithstanding anything contained herein to the contrary, ifCCP may, following upon the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as prior written consent of the date hereof is Company (which approval shall not be unreasonably withheld), sell or otherwise transfer the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after Company's common stock in a private transaction to a third party which: (i) agrees to be bound by the date provisions of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 74, and (ii) is not an CCP Affiliate.
(fd) Notwithstanding anything in this Agreement contained herein to the contrary, it is understood and agreed thatCCP shall be entitled, (i) at any time, to engage in a disposition of the Company's common stock, if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares the Trading Price (as defined below) of the Company's common stock exceeds $1.00 (to be proportionately adjusted in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) event of any Sponsor Party subdivision or combination of the Company's common stock) during each Trading Day in any Trading Period (as defined in below). "Trading Price" means an amount equal to the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any average of the restrictions closing bid and ask prices on Transfer under this Section 7 a Trading Day (as defined below) as reported by the Nasdaq SmallCap Market (the "NasdaqSC") or under such other securities exchange on which the Sponsor Letter AgreementCompany's common stock is publicly traded ("Other Exchange"). "Trading Day" means a day on which the Company's common stock is traded on the Nasdaq or such Other Exchange, as applicable, then . "Trading Period" means the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the five Trading Days immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofof disposition.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit Where a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during Event has occurred and is continuing on a Calculation Date, as soon as practicable but in any event within 10 Business Days of the date upon which the Company has delivered the Compliance Certificate in respect of such Calculation Date, the Company shall credit the Lock-Up PeriodAccount in an amount equal to the Lock-Up Amount in respect of the Calculation Period ending on such Calculation Date and shall continue to transfer Lock-Up Amounts in respect of Calculation Periods ending on successive Calculation Dates following the occurrence of such Lock-Up Event until such time as the Company delivers a Compliance Certificate evidencing that no Lock-Up Event is continuing.
(b) Notwithstanding When a Lock-Up Event has occurred in respect of a Calculation Date (the provisions set forth “First Lock- Up”) and a further Lock-Up Event occurs on the immediately succeeding Calculation Date any Lock-Up Amount (less any amounts applied in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer voluntary prepayment pursuant to paragraph (c)(iii) below) which was deposited in the Lock-up Shares Up Account as a result of such NET Power Holder (if any and to the extent applicable) during the First Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) Up shall be applied in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all prepayment of the Company’s Stockholders having Facilities, at the right to exchange their shares times and in the order of Common Stock application contemplated by Clause 11.5 (including any Company Interests exchangeable for shares Application of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Datemandatory prepayments).
(c) Notwithstanding The Company shall not withdraw any Lock-Up Amount standing to the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) credit of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds Up Account except:
(i) $12.00 per share, then each to fund operational and contracted capital expenditure needs of the NET Power HoldersGroup (provided only to the extent (A) that the Company has no other funds available to meet such payments and (B) in relation to funding contracted capital expenditure needs only, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up that such withdrawal is necessary to one-third avoid a breach of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transfereesrelevant contract, which, in each case, has been certified in writing by a director of the aggregate as Company);
(ii) to be applied towards payment of immediately following any accrued interest, commission, fees, and other finance payments in respect of the Closing Facilities (provided only to the aggregate Price-Based extent that the relevant Obligor has no other funds available to meet such payments);
(iii) to be applied in voluntary prepayment of the Facilities;
(iv) if a Compliance Certificate has been delivered in respect of the most recent Calculation Date evidencing that no Lock-up Shares, Up Event is continuing as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and at such Calculation Date; or
(v) to comply with Clause 6.6 (Clean down) provided that the like, the “NET Power Holders Price-Based Shares”) during amount of such withdrawal is promptly transferred to the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7Account.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Senior Facilities Agreement
Lock-Up. Shareholder agrees that for a period beginning upon the Effective Time of the Merger and ending 180 days thereafter, the Shareholder will not, directly or indirectly (ax) Subject make, agree to Sections 7(b) and 7(cor cause any offer, sale (including short sale), each NET Power Holder agrees loan, pledge, or other disposition of, or grant any options, rights or warrants to purchase with respect to, or otherwise transfer or reduce any risk of ownership of, directly or indirectly, any MAPICS Common Stock or (y) enter into any swap or other arrangement that transfers all or a portion of the economic consequences associated with the Company that itownership of MAPICS Common Stock (regardless of whether any of the transactions described in clause (x) or (y) is to be settled by the delivery of MAPICS Common Stock, he in cash or she otherwise), nor will the undersigned make any demand for or exercise any right with respect to the registration of MAPICS Common Stock, without the prior written consent of MAPICS, which shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubtbe unreasonably withheld, the Lock-up shall not apply to any Company Interestsconditioned or delayed; provided, warrants or other securities of the Company (whether acquired in the open markethowever, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 that nothing contained herein shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any the exercise of such NET Power Holderstock options or other purchases of MAPICS Common Stock under stock option plans or other incentive compensation arrangements for employees or directors previously approved by MAPICS’s Permitted Transferees; Board of Directors or (ii) the gift, pledge or assignment of any such securities without the prior consent of MAPICS if the donee, pledgee or assignee agrees, in connection with a liquidationwriting delivered to MAPICS within five days after such gift, mergerpledge or assignment, stock exchange, reorganization, tender offer approved to be bound by the Board or a duly authorized committee thereof or other similar transaction which results in all terms of this letter. The Shareholder consents to the entry of stop-transfer instructions with MAPICS’s transfer agent against the transfer of, and authorizes MAPICS to cause the transfer agent to decline to transfer, any of the Company’s Stockholders having above-described securities owned beneficially or of record by the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) undersigned. Notwithstanding the provisions set forth in Section 7(a)foregoing, if MAPICS amends or waives the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes terms of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, 2.7 for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds Shareholder (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of other than a Shareholder who immediately following the Closing (Merger is an employee of MAPICS or the aggregate Price-Based Lock-up SharesSurviving Corporation), as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price further action on the principal exchange on which such securities are then listed part of MAPICS or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubtPerson, this Section 7 2.7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders be amended and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofwaived for all other Shareholders.
Appears in 1 contract
Samples: Shareholder Agreement (Mapics Inc)
Lock-Up. Without the prior written consent of the Company, the Investor may not transfer or otherwise dispose of any Securities prior to January 31, 2000. After such date, the Investor may only transfer or otherwise dispose of Securities (aincluding pursuant to the Registration Rights Agreement) in a transaction in which Securities are being transferred by Persons (which may include the Investor) holding a majority in interest of the then outstanding Securities (with respect to the Warrants, based on the number of Warrant Shares for which the Warrants are then exercisable) (the "Majority Holders"). Any such transaction is referred to herein as a "Permitted Transaction". Subject to Sections 7(bany applicable restrictions set forth in the Registration Rights Agreement, upon notice from the Majority Holders of a proposed Permitted Transaction, each other Person which then holds Securities (a "Permitted Holder") shall be entitled to, and 7(cupon request by the Majority Holders will (and the Company may, by notice to the Majority Holders, require that the Majority Holders so request), each NET Power Holder agrees with transfer in such Permitted Transaction, on the Company that itsame terms as those on which the Majority Holders are transferring Securities, he or she shall not Transfer any Lock-up Shares the same portion of such NET Power Holder Permitted Holder's Securities as the portion of the Securities then held by the Majority Holders being transferred in such Permitted Transaction ; provided, that if the purchaser(s) in such Permitted Transaction (if any and the "Permitted Transaction Purchasers") desire to purchase less than all of the Securities to be sold in such Permitted Transaction in accordance with this Section 5.3, the number of Securities to be so sold shall be reduced to the extent applicablenumber of such Securities to be purchased by the Permitted Transaction Purchasers, on a pro rata basis with respect to each Person selling Securities in such Permitted Transaction (each such Person, a "Permitted Transaction Seller"), based on the number of Securities then held by such Permitted Transaction Seller (with respect to any Warrants held by a Permitted Transaction Seller, based on the number of Warrant Shares for such Warrants are then exercisable) until relative to the end number of Securities then held by all Permitted Transaction Sellers. Notwithstanding the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubtforegoing, the Lock-up restrictions on transfer set forth in this Section 5.3 shall not apply to any Company Interests, warrants (i) transfer or other securities disposition of Securities by the Company Investor to any Permitted Transferee (whether acquired provided any such Permitted Transferee agrees in writing to be bound by the open market, directly from the Company, upon exercise first sentence of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from 5.3 to the establishment of a trading plan pursuant extent applicable to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any Investor and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect 5.3 applicable to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its a Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7Holder), (ii) $14.00 per shareany bona-fide pledge of, then each NET Power Holderor grant of a security interest in, together with its Permitted Transfereesany Securities to any senior creditor of Sneaker as of immediately prior to the Closing, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess or any foreclosure upon, or sale or other disposition of, such Securities by such creditor or any assignee or transferee of the NET Power Holders Price-Based Shares described in claim or interest of such creditor pursuant to any debt restructuring agreement, or any agent acting for any of the foregoing clause (i) (i.e.foregoing, up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and or (iii) $16.00 per shareany sale of Securities after January 31, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect 2000 pursuant to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended public offering or otherwise modified in on a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationpublic trading market.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Sneaker Guarantee LLC)
Lock-Up. (a) Subject Each of TLF and Holdings hereby agrees that continuing through the earliest to Sections 7(boccur of (x) and 7(c)January 1, each NET Power Holder agrees with 2019, (y) the execution of a definitive agreement providing for a Company Sale, or the public announcement of a Company Sale, as a result of which stockholders of the Company that it, he will receive cash and/or securities in exchange for or she shall not Transfer any Lock-up Shares in respect of such NET Power Holder (if any and to the extent applicable) until the end their shares of Common Stock of the applicable Lock-up Period Company having an aggregate per share value (the “Lock-upPer Share Consideration”) of less than the Put Purchase Price (as defined below), and (z) the occurrence of a Bankruptcy Event (with such earliest date, the “Restricted Period End Date” and with the period commencing with the completion of the Transfer and ending with the Restricted Period End Date constituting the “Restricted Period”). For the avoidance of doubt, or if earlier, the Lock-up shall not apply date that this Agreement is terminated by the written consent of Fxxxxxx, TLF and Holdings will not, without the prior written consent of Fxxxxxx, directly or indirectly through any Affiliate or Associate, (i) offer, pledge (other than in connection with margin loans in the ordinary course of business), sell, contract to sell, sell any Company Interestsoption or contract to purchase, warrants purchase any option or contract to sell, grant any option, right or warrant for the sale of, make any short sale or otherwise dispose of or transfer any of the Aggregate Shares or any securities convertible into or exchangeable or exercisable for the Aggregate Shares, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Aggregate Shares, whether any such swap or transaction is to be settled by delivery of the Aggregate Shares or other securities of the Company (whether acquired securities, in the open market, directly from the Company, upon exercise of any warrants cash or otherwise) other than . In order to ensure compliance with the Lock-up Shares. Nothing restrictions set forth in this Section 7 shall prohibit a NET Power Holder from 2, Holdings agrees that the establishment of a trading plan pursuant Company may issue appropriate stop-transfer certificates or instructions with respect to Rule 10b5-1 promulgated under any Aggregate Shares until the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up PeriodRestricted Period End Date.
(b) Notwithstanding During the provisions set forth in Section 7(aRestricted Period, each of Holdings and TLF agrees that neither Holdings nor TLF, individually or through any Affiliate or Associate (as defined below), shall acquire (or propose or agree to acquire), of record or Beneficially (as defined below), by purchase or otherwise, any NET Power Holder loans, debt securities, equity securities or assets of the Company or any of its Permitted Transferees may subsidiaries, or rights or options to acquire interests in any of the Company's loans, debt securities, equity securities or assets, other than the Transfer and Holdings’ ownership of the Lock-up Aggregate Shares of such NET Power Holder (if any and following the Transfer; provided, however, the foregoing restriction shall not apply solely as to equity compensation awards for Board or other service to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; Company which have been or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer are approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing DateBoard.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for For purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.:
Appears in 1 contract
Samples: Agreement (Biglari Capital Corp.)
Lock-Up. (a) Subject to Sections 7(bExcept as permitted by Section 1(e) and 7(c)of this Agreement, each NET Power Holder agrees with effective upon the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end occurrence of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubtClosing, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (as defined below), each Stockholder Party irrevocably agrees that it, he or she will not (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or enter into any agreement to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the Securities and Exchange Commission promulgated thereunder, in each case with respect to any Lock-up Shares (as defined below) that are beneficially owned or owned of record by such NET Power Holder’s Permitted Transferees; Stockholder Party, (ii) enter into any swap, hedge or other arrangement that transfers to another, in whole in part, any of the economic consequences of ownership of any Lock-up Shares, whether any such transaction is to be settled by delivery of any Lock-up Shares, in cash or otherwise, or engage in any Short Sales (as defined below), in each case with respect to any Lock-up Shares that are beneficially owned or owned of record by such Stockholder Party, or (iii) publicly disclose the intention to effect any transaction specified in clauses (i) or (ii).
(b) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all In furtherance of the Companyforegoing, Acquiror will (i) place an irrevocable stop order on all Lock-up Shares, including those which may be covered by a registration statement, and (ii) notify Acquiror’s Stockholders having transfer agent in writing of the right stop order and the restrictions on such Lock-up Shares under this Agreement and direct Acquiror’s transfer agent not to exchange their shares process any attempts by a Stockholder Party to resell or transfer any Lock-up Shares, except in compliance with Section 1(e) or the other provisions of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Datethis Agreement.
(c) Notwithstanding For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the provisions set forth in Section 7(aExchange Act, and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7and sales and other transactions through non-US broker dealers or foreign regulated brokers.
(d) With respect to Price-Based For purpose of this Agreement, the “Lock-up SharesPeriod” means the earlier of (i) the date that is six (6) months from the Closing Date, notwithstanding anything contained herein to (ii) the contrary, if, following date on which the Closing, the last sale closing price of the Class A Acquiror Common Stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations reorganizations and similar transactionsrecapitalizations) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 twenty (20) trading days within any 30 thirty (30) consecutive trading-trading day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following on the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7Date, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as date specified in a written waiver of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months provisions of this Agreement duly executed after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in Closing by the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in and the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationAcquiror.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during During the Lock-up Period (as defined below), the Holder irrevocably agrees that it will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any of the Lock-up Shares (including any securities convertible into, or exchangeable for, or representing the rights to receive, Lock-up Shares), enter into a transaction that would have the same effect, or enter into any swap, hedge or other arrangement that transfers or intends to transfer, in whole or in part, any of the economic or beneficial consequences of ownership of such Lock-up Shares, whether any of these transactions are to be settled by delivery of any such Lock-up Shares, in cash or otherwise, publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement, or engage in any Short Sales with respect to any security of the Middle Kingdom Parties. [Notwithstanding the foregoing, the parties hereto acknowledge that the Lock-up Shares have been pledged to Gottex Fund Management Sàrl (“Existing Pledge”) to secure monies borrowed by ARC Capital Holdings Limited, the sole shareholder of Arch BVI, and that the restrictions of this Lock-up Agreement shall be subject to the Existing Pledge.]1 Furthermore, nothing in this provision intends to restrict transfers of the Lock-up Shares by (i) the Pypo Shareholders (other than the Management Shareholders) that are in compliance with applicable federal and state securities laws to any Persons who agree in writing to be bound by the terms of such NET Power Holder’s Permitted Transferees; or the Lock-Up Agreement as to the Lock-up Shares so transferred and (ii) the Pypo Shareholders pursuant to an underwritten secondary offering.
(b) In furtherance of the foregoing, the Middle Kingdom Parties will (i) place an irrevocable stop order on all Lock-up Shares, including those which are covered by a registration statements, (ii) notify the MK Cayman transfer agent in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved writing of the stop order and the restrictions on such Lock-up Shares under this Agreement and direct the MK Cayman transfer agent not to process any attempts by the Board Holder to resell or transfer any Lock-up Shares, except in compliance with this Agreement; and (iii) place a duly authorized committee thereof notation on the register of members of MK Cayman about the restrictions on such Lock-up Shares under this Agreement and direct the MK Cayman register office service provider not to process any attempts by the Holder to resell or other similar transaction which results transfer any Lock-up Shares, except in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Datecompliance with this Agreement.
(c) Notwithstanding For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the provisions set forth in Section 7(aExchange Act and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7and sales and other transactions through non-US broker dealers or foreign regulated brokers.
(d) With respect to Price-Based For purpose of this agreement, “Lock-up Shares, notwithstanding anything contained herein to Period” means a period of [24 months/12 months]2 from the contrary, if, following Date of Delivery. “Date of Delivery” means the Closing, the last sale price date of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as delivery of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during to the Pypo Shareholders (which shall be the Closing Date with respect to the Initial Equity Payment is being delivered to the Pypo Shareholders at the Closing, and which shall be the dates that the Earn-Out 1 Insert language in brackets for the lock-up agreement with Arch BVI. 2 In the case of the Management Shareholders, the Lock-up period shall be 24 months from the Date of Delivery, and in the case of the Pypo Shareholders other than the Management Shareholders, the Lock-up Period without restriction under this shall be 12 months from the Date of Delivery. Shares are issued and delivered in accordance with Section 7 in an amount up to one-third 5.2(b) of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Exchange Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor TimeEarn-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Out Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification).
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. (a) Subject The Subscriber acknowledges that the Shares will be subject to Sections 7(b) and 7(c), each NET Power Holder agrees with the Company that it, he or she shall not Transfer any Locklock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period provisions (the “Lock-up”). For ) contained in a Letter Agreement, to be entered into prior to the avoidance date of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of preliminary prospectus in connection with the IPO between the Subscriber and the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares“Letter Agreement”). Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and Pursuant to the extent applicableLetter Agreement, the Subscriber shall not sell, transfer, pledge, hypothecate or otherwise dispose of its Shares until the earlier of (A) during one year after the Lock-up Period (i) to any completion of such NET Power Holder’s Permitted Transferees; our initial business combination, or (iiB) in connection with the date on which we complete a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof exchange or other similar transaction which after our initial business combination that results in all of the Company’s Stockholders our public stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) common stock for cash, securities or other property subsequent to (the Closing “Consummation Date.
(c) Notwithstanding the provisions set forth in Section 7(a”). In such case, the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything and the aforesaid restrictions contained herein to in this paragraph shall lapse and be of no further force or effect. Notwithstanding the contrary, if, following the Closingforegoing, the converted shares of our Ordinary Shares will be released from the lock-up if:
a) the last reported sale price of the Class A Common Stock our Ordinary Shares equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividendscapitalizations, reorganizations, recapitalizations and other similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading30-trading day period commencing at least 15 150 days after our initial business combination, or;
b) if we complete a transaction after our initial business combination which results in all of our stockholders having the Closingright to exchange their shares for cash, exceeds (i) $12.00 per sharesecurities or other property. Subscriber also agrees not to transfer any ownership interest in, then each except to permitted transferees, any Private Placement Warrants purchased prior to the IPO, or the closing of any over-allotment option by the underwriter, until at least 30 days following the completion of the NET Power HoldersBusiness Combination. However, together with its Permitted Transferees, may Transfer their Priceif after a Business Combination there is a transaction whereby all the outstanding shares are exchanged or redeemed for cash (as would be the case in a post-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”asset sale liquidation) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per shareanother issuer’s shares, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Insider Shares or Sponsor Time-Based Lock-up Shares subject to such release; and the Private Placement Warrants (iior any shares of Common Stock thereunder) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified permitted to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationparticipate.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Securities Purchase Agreement (Energy Cloud I Acquisition Corp)
Lock-Up. (a) Subject to Sections 7(b) and 7(cSection 3(b), each NET Power Holder the Sponsor agrees that no Sponsor Interests held by the Sponsor or its Lock-Up Permitted Transferees shall be Transferred (excluding, for the avoidance of doubt, any (i) transfers of Ordinary Shares into any escrow or trust account for potential transfer to investors in accordance with the Company that itterms of this Agreement, he the Subscription Agreements or she shall not Transfer any the Business Combination Agreement or (ii) Ordinary Shares purchased in a private placement or secondary transaction in connection with the consummation of the Business Combination or acquired in the public market following the Closing) (collectively, the “Lock-up Shares Interests”) or any instruments exercisable or exchangeable for, or convertible into, any of such NET Power Holder (if any and to the extent applicable) foregoing until the end of date that is one hundred and eighty (180) days after the applicable Lock-up Period Closing Date (the “Lock-up”). For It is acknowledged and agreed that, in addition to the restrictions hereunder, the unvested Sponsor Interests are subject to the vesting conditions under Section 4 hereof, and may not be Transferred until the vesting conditions with respect to such unvested Sponsor Interests are satisfied (and in any case subject to the Lock-up hereunder). It is acknowledged and agreed further that, for the avoidance of doubt, any Price Adjustment Shares issued pursuant to Section 2.10 of the Business Combination Agreement may not be Transferred until the vesting conditions in Section 2.10 of the Business Combination Agreement with respect to such Price Adjustment Shares are satisfied (and in any case subject to the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Periodhereunder).
(b) Notwithstanding the provisions set forth in Section 7(a3(a), any NET Power Holder or the Sponsor and its Lock-up Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) Interests during the Lock-up Period (ia) to any Pre-Closing Permitted Transferee; (b) by virtue of the Sponsor’s registration statement or limited liability company agreement or Pre-Closing Permitted Transferee’s certificate of incorporation or bylaws (or equivalent), as amended, upon dissolution of the Sponsor or such NET Power Holder’s Pre-Closing Permitted TransfereesTransferee; (c) in connection with a bona fide gift or charitable contribution without consideration; (d) with the written consent of the Company Board or (iie) in connection with a liquidation, merger, stock exchange, reorganization, tender offer or other similar transaction, in each case in this clause (e) as approved by the Company Board or a duly authorized committee thereof or other similar transaction thereof, which results in all of the Company’s Stockholders shareholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) Ordinary Shares for cash, securities or other property subsequent to the Closing Date.
Date (collectively, the “Lock-up Permitted Transferees”); provided, however, that in the case of clauses (a) through (c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based such Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock Permitted Transferee must execute a Joinder Agreement (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSEincluding, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, agreeing to be bound by Section 4(e) of this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofAgreement).
Appears in 1 contract
Samples: Sponsor Letter Agreement (Endurance Acquisition Corp.)
Lock-Up. (a) Subject to Sections 7(b) and 7(c)The Stockholder agrees that, each NET Power Holder agrees with without the Company that itexpress prior written consent of Hach, he or she shall will not Transfer offer, sell, make any Lock-up Shares of such NET Power Holder (if short sale of, loan, encumber, grant any and to option for the extent applicable) until the end of the applicable Lock-up Period purchase of, or otherwise dispose of, by private placement, brokers' transaction or otherwise (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a"RESALE RESTRICTIONS"), any NET Power Holder Hach Shares for a period of 180 days after the Effective Time (the "LOCK-UP PERIOD"). The foregoing Resale Restrictions are expressly agreed to preclude the holder of the Hach Shares from engaging in any hedging or its Permitted Transferees other transaction which may Transfer the Lock-up lead to or result in a sale of Hach Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period even if such Hach Shares would be sold by someone other than the Stockholder. Such prohibited hedging or other transactions would include without limitation any short sale (iwhether or not against the box), any pledge or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of such NET Power Holder’s Permitted Transferees; or the Hach Shares.
(iib) in connection The Stockholder agrees and consents to the entry of stop transfer instructions with a liquidation, merger, stock exchange, reorganization, tender offer approved the transfer agent for Hach's Common Stocks against any transfer of shares of Hach's Common Stocks by the Board or a duly authorized committee thereof or other similar transaction which results Stockholder in all contravention of the Company’s Stockholders having Resale Restrictions. The Stockholder understands that Hach has relied upon the right to exchange their shares representations set forth in this letter in proceeding with the Registration Statement. The Stockholder understands that the agreements of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cashthe Stockholder are irrevocable and shall be binding upon the Stockholder's heirs, securities or other property subsequent to the Closing Datelegal representatives, successors and assigns.
(c) Notwithstanding the provisions set forth in Section 7(a)foregoing, the retirement Stockholder may transfer any or all the Hach Shares either during his lifetime or on death by will or intestacy to (i) his immediate family or (ii) to a trust the beneficiaries of shares which are exclusively the undersigned and/or a member or members of Class B Common Stock pursuant his immediate family, or (iii) to Section 4.3(b) a charitable remainder trust the lifetime beneficiaries of which are exclusively the Charter undersigned and/or a member or members of his immediate family; provided, however, that in any such case it shall not be deemed a Transfer for condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding the Hach Shares subject to the provisions of this Lock-up Agreement, and there shall be no further transfer of such Hach Shares except in accordance with the Lock-up Agreement. For purposes of this Section 7paragraph, "IMMEDIATE FAMILY" shall mean spouse, lineal descendant, father, mother, brother or sister of the transferor.
(d) With Notwithstanding the foregoing, the restrictions set forth in Section 3(a) of this Agreement shall terminate: (i) with respect to Price-Based Lock-up Hach Common Stock which Stockholder holds as part of the Hach Shares, notwithstanding anything contained herein to on the contrary, if, third business day following the Closing, date on which the last sale closing price of the one share of such class of stock, as quoted on The National Association of Securities Dealers Automated Quotations - National Market System ("NASDAQ CLOSING PRICE"), is less than [80% OF MERGER CLOSING VALUE]; (ii) with respect to Hach Class A Common Stock which Stockholder holds as part of the Hach Shares, on the third business day following the date on which the NASDAQ Closing Price of one share of such class of stock is less than [80% OF MERGER CLOSING VALUE]; or (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”iii) on the principal exchange on which such securities are then listed or quoted, which as tenth day following written notice from the Stockholder to Hach that a material breach of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or Hach's obligations under the Sponsor Letter Agreement, as applicable, then Merger Agreement has occurred; provided however that Hach shall have the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless right to cure such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to breach during such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationten day period.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Lock Up Agreement (Hach Co)
Lock-Up. The Seller agrees that, during the period from the Closing to the six (a6) Subject to Sections 7(b) month anniversary of the Closing Date and 7(cduring the holding period required under Rule 144 promulgated under the Securities Act and SEC rules (the “Lock Up Period”), each NET Power Holder agrees with the Company that it, he or he/she shall not Transfer directly or indirectly sell, offer to sell, contract to sell (including, without limitation, any Lock-up Shares of such NET Power Holder (if short sale), grant any and option to the extent applicable) until the end purchase, pledge or otherwise transfer or dispose of the applicable Lock-up Period common stock of the Buyer acquired pursuant to this Agreement. The Seller further agrees that during the period commencing six (6) months after the Closing and terminating eighteen (18) months thereafter (the “Lock-upRestricted Period”). For the avoidance of doubt, during any calendar month, the Lock-up Seller may not sell more than the greater of (i) 1/18 of the aggregate number of shares of Buyer Common Stock issued at the Closing, or (ii) 10% of the total trading volume of the Buyer Common Stock for the previous calendar month. The foregoing provisions of this Section 5.8(a) shall not apply to any Company Interests(i) sales of Buyer Common Stock to be included in an underwritten offering effected pursuant to Section 5.8(b), warrants or other securities of (ii) bona fide gifts, provided the Company (whether acquired recipient thereof agrees in writing with the open market, directly from Buyer to be bound by the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing restrictions contained in this Section 7 shall prohibit a NET Power Holder from 5.8(a), (iii) dispositions to any trust for the establishment direct or indirect benefit of a trading plan pursuant to Rule 10b5-1 promulgated under holder of Buyer Common Stock Recipient and/or the Exchange Actimmediate family of a holder of Buyer Common Stock, provided that such plan does not provide for trust agrees in writing with the Transfer Buyer to be bound by the terms of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in this Section 7(a5.8(a), any NET Power Holder (iv) transfers of shares in the event of death by will or its Permitted Transferees may Transfer intestacy, or (v) a distribution of shares of Buyer Common Stock to stockholders, members or other equity owners of the Lock-up Shares holder of Buyer Common Stock, provided the recipient thereof agrees in writing with the Buyer to be bound by the restrictions contained in this Section 5.8(a); provided further, that upon the effective date of a Registration Statement covering the common stock issued to the Seller pursuant to this Agreement that is not part of an underwritten offering, the Lock Up Period will terminate and the Restricted Period will be extended to the period between the effective date of such NET Power Holder Registration Statement and the six (if any and to the extent applicable6) during the Lock-up Period (i) to any month anniversary of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(cthe exclusions in Section 2.1(c), each NET Power the Holder agrees with the Company that it, he or she shall not to Transfer any Lock-up Acquiror Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth The Holder represents and warrants that it is not and will not, and has not caused or directed any of its direct or indirect affiliates to be or become, party to any agreement or arrangement that provides for, is designed to, or which reasonably could be expected to lead to or result in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Prohibited Activity in respect of Lock-up Acquiror Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing DatePeriod.
(c) Notwithstanding the provisions set forth in Section 7(a2.1(a) and Section 2.1(b), the retirement of shares of Class B Common Stock Holder may do the following:
(i) Transfer any Lock-up Acquiror Shares pursuant to Section 4.3(ba Change of Control Transaction, provided that in the event that such Change of Control Transaction is not completed, the Lock-up Acquiror Shares shall remain subject to the provisions of this Agreement;
(ii) Transfer the Lock-up Acquiror Shares to an Affiliate;
(iii) provided the Holder is a corporation, partnership, limited liability company, trust or other business entity, Transfer the Lock-up Acquiror Shares (i) directly or indirectly, to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the Charter shall Holder, or to any investment fund or other entity controlling, controlled by, managing or managed by, advising or advised by, or under common control, management or advisement with the Holder or affiliates of the Holder (including, for the avoidance of doubt, where the Holder is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (ii) as part of a Transfer without consideration by the Holder to its direct or indirect members or stockholders or any affiliate of the Holder, or its current partners (general or limited), members, beneficiaries or other equity holders, or to the estates of any such stockholders, partners, beneficiaries or other equity holders; or
(iv) enter into a written plan meeting the requirements of Rule 10b5-1 under the Exchange Act after the Closing Date relating to the Transfer, if then permitted by the Acquiror, provided that the securities subject to such plan may not be deemed a Transfer for purposes Transferred until after the expiration of this Section 7.
(d) With respect to Price-Based the Lock-up Shares, notwithstanding anything contained herein to Period and no public announcement or filing under the contrary, if, following Exchange Act shall be required or shall be voluntarily made by any person regarding the Closing, the last sale price establishment of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares plan during the Lock-up Period without restriction Period; provided, that (x) in the case of clauses (ii) and (iii) above, it shall be a condition to the Transfer that (A) the Affiliate, transferee or distributee, as the case may be, enters into an agreement with Acquiror pursuant to which it agrees in writing to be bound by the restrictions set forth herein, and there shall be no further Transfer of such Acquiror Shares except in accordance with this Lock-Up Agreement, (B) such Transfer shall not involve a disposition for value, and (C) no filing under this Section 7 in an amount up to one-third 16 of the Price-Based Lock-up Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of Acquiror Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) shall be required or shall be voluntarily made during the Lock-Up Period without restriction under this Section 7(other than any required Form 5 filing) and (y) for the avoidance of doubt, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Holder shall not Transfer up any Escrow Shares until such time that such shares have been released from escrow and issued to an additional one-third of its NET Power Holders Price-Based Shares in excess the Holder pursuant to the terms of the NET Power Holders PriceShare Purchase Agreement and the Escrow Agreement.
(d) The Holder also agrees and consents to the entry of stop transfer instructions with the Acquiror’s transfer agent and registrar against the Transfer of the Lock-Based up Acquiror Shares described except in compliance with the foregoing clause (i) (i.e.restrictions. By default, the Acquiror will use reasonable best efforts to instruct the transfer agent and registrar to remove stop transfer instructions using a “first in, first out” methodology if less than all of the Lock-up Acquiror Shares are to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7be released.
(e) With respect In the event that a release is granted to Timea Lockup Stockholder (other than Holder) that is an officer or director of the Company or a 1.5% Holder (each a “Triggering Person”) under such Triggering Person’s respective Lockup Agreement relating to the lock-Based up restrictions set forth therein (a “Triggering Release”), the same percentage of Holder’s Lock-up Shares, notwithstanding anything contained herein to Acquiror Shares as the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as percentage of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction Acquiror Shares being released under this Section 7.
(f) Notwithstanding anything in this such Triggering Person’s Lockup Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner represent with respect to the Sponsor Time-Based total number of Lock-up Acquiror Shares held by such Triggering Person shall be immediately and fully released on the same terms from lock-up restrictions set forth herein. Notwithstanding the foregoing, no waiver, termination, release or Sponsor Price-Based other consent will constitute a Triggering Release if the aggregate number of shares of Lock-up Up Acquiror Shares favorable released as to Sponsor any Lockup Stockholder and such amendment his, her or modification, if applied to this Agreement with respect its Affiliates (whether in one or multiple releases) has a value not greater than $5,000,000 (measured based on the closing price of Acquiror Shares on the trading day prior to the Time-Based Lock-up Shares waiver or Price-Based Lock-up Shares, release as applicable, would also be favorable to any of reported on the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modificationNew York Stock Exchange).
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract
Samples: Lock Up Agreement (DoorDash, Inc.)
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Holder agrees with Notwithstanding anything in this Agreement or the Company that it, he or she shall not Transfer any Lock-up Shares of such NET Power Holder (if any and Purchase Agreement to the extent applicablecontrary, Alamo agrees as follows: (i) until [●], 2021 [90 days post-Closing], Alamo will continue to own all 26,000,000 Common Shares issued to Alamo pursuant to the end Purchase Agreement, (ii) until [●], 2022 [180 days post-Closing], Alamo will continue to own at least 20,000,000 of the applicable LockCommon Shares issued to Alamo pursuant to the Purchase Agreement, and (iii) until [●], 2022 [360 days post-up Period Closing], Alamo will continue to own at least 10,000,000 of the Common Shares issued to Alamo pursuant to the Purchase Agreement (the Common Shares that Alamo is required to own pursuant to this sentence during specific time periods are collectively referred to herein as the “Lock-upUp Shares”). For the avoidance of doubt, the With respect to Common Shares that constitute Lock-up Up Shares, Alamo shall not apply to any Company Interestsnot, warrants or other securities without the prior written consent of the Company (whether acquired in the open market, directly from the Company, upon exercise directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or lend or otherwise transfer or dispose of any warrants or otherwise) such Lock-Up Shares, other than distributions of Common Shares to Permitted Transferees who at the Locktime of such distribution are members of Alamo; provided that, in the case of any such distribution: (a) each Permitted Transferee distributee shall execute and deliver to the Company a lock-up Shares. Nothing letter in such form as agreed to by Alamo pursuant to this Section 7 shall prohibit a NET Power Holder from 2.14 (which will specify, among other things, the establishment number of a trading plan pursuant Common Shares held by such Permitted Transferee that are subject to Rule 10b5the lock-1 promulgated up periods set forth in clauses (i), (ii) and (iii) above); (b) no filing by any party (transferor or transferee) under the Exchange ActAct or other public announcement shall be required or shall be made voluntarily in connection with such distribution (other than a filing on a Form 5 made after the expiration of the applicable time period referred to above); (c) each Permitted Transferee will be subject to the lock-up periods set forth in clauses (i), provided (ii) and (iii) above on a pro rata basis with respect to its Common Shares (or as close thereto as practicable without issuing fractional shares) such that the total number of Common Shares subject to the lock-up periods set forth in clauses (i), (ii) and (iii) above will remain the same; (d) prior to any such plan does not distribution Alamo will provide to the Company the legal name of each Permitted Transferee, the number of Common Shares being distributed to such Permitted Transferee and any additional information for each Permitted Transferee that the Company may request pursuant to Section 2.5(k); and (e) the Company shall take all actions contemplated by Section 2.5 to supplement any Shelf Registration Statement with the information contemplated by clause (d) within ten (10) business days following such distribution and to cause such Shelf Registration statement to be declared and remain effective for the Transfer period described in the last sentence of Section 2.1(a). Alamo agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth except in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection compliance with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) restrictions. Notwithstanding anything in this Agreement to the contrarycontrary (including anything in Section 2.1, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder Section 2.2 or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter AgreementSection 2.5), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days not be required to effect any Underwritten Shelf Offering or Piggy-Back Transaction with respect to any Common Shares that constitute Lock-Up Shares. If any Lock-Up Shares are certificated, upon the request of Alamo, following the expiration of the occurrence of restrictions hereunder with respect to such amendment or modification.
(g) For the avoidance of doubtLock-Up Shares, this Section 7 Alamo shall in no way limit any restrictions on or requirements relating be entitled to the Transfer of promptly receive from the Company Interests Beneficially Owned new certificates for a like number of Common Shares not bearing any legend with respect to transfer restrictions pursuant to this Agreement. For clarity, from and after [●], 2022 [360 days post-Closing], Alamo will not be required by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents Purchase Agreement to continue to own any of the Company Common Shares issued to Alamo pursuant to the Purchase Agreement and OpCo as none of the date hereofsuch Common Shares shall constitute Lock-Up Shares.
Appears in 1 contract
Samples: Registration Rights Agreement (Nextier Oilfield Solutions Inc.)
Lock-Up. (a) Subject Except as otherwise consented to Sections 7(b) and 7(c)by PubCo in its sole discretion, each NET Power Holder severally, and not jointly, agrees with the Company that itPubCo not to effect any Transfer, he or she shall not Transfer make a public announcement of any intention to effect such Transfer, of any Lock-up Up Shares of (as defined below) Beneficially Owned or otherwise held by such NET Power Holder (if any and to Person during the extent applicable) until the end of the applicable Lock-up Up Period (the “Lock-up”as defined below); provided that such prohibition shall not apply to Transfers (i) permitted pursuant to Section 4.2 or (ii) permitted pursuant to Article III. For the avoidance of doubt, the Lock-up shall each Holder agrees with PubCo not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares effect an LP Distribution during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period (i) to any of such NET Power Holder’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s Stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
(c) Notwithstanding the provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect to Price-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transfereesprovided, in each such case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if notwithstanding anything to the contrary in this Investor Rights Agreement, Sponsor may exercise the Locked-Up Warrants at any Time-Based time during the Lock-up Shares of any NET Power Holder or Up Period. The “Lock-up Shares Up Period” shall be (x) in the case of the Holders (other than the Colony Holders), the period commencing on the Closing Date and ending on the date that is 180 days following the Closing Date and (y) in the case of Colony Holders, the period commencing on the Closing Date and ending on the date that is one year following the Closing Date; provided that if the primary external tax advisor for PubCo reasonably concludes that the Intended Tax Treatment (as defined in the Sponsor Letter Merger Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party the Transactions (as defined in the Sponsor Letter Merger Agreement)) is not “more likely than not” the appropriate tax treatment for the Transactions, are directly or indirectly (by waiverthen, amendment or otherwise) released from any of for each Blade Holder, the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also Up Period shall be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject deemed to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner have expired with respect to the Sponsor Time-Based a number of Lock-up Up Shares held by such Blade Holder the sale of which in accordance with Article III would provide (pursuant to such Blade Holder’s reasonable determination) net proceeds to such Blade Holder reasonably sufficient to enable such Blade Holder to discharge such Blade Holder’s cash tax liabilities resulting directly or Sponsor Price-Based indirectly, from the consummation of the Transactions and the sale of any such Lock-up Up Shares favorable to Sponsor and (such amendment or modificationsale, if applied to this Agreement with respect to the Time-Based a “Tax Sale”). The “Lock-up Shares or Price-Based Lock-up Up Shares, as applicable, would also be favorable to any of ” means the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned Registrable Securities held by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereofClosing Date, including Common Stock and the Warrants (other than any shares acquired in the PIPE Investment).
Appears in 1 contract
Samples: Investor Rights Agreement (Experience Investment Corp.)
Lock-Up. (a) Subject The Holder shall not, other than with the consent of the Buyer’s board of directors, offer, sell, lease, contract to Sections 7(bsell, pledge, assign, grant any option to purchase, make any short sale or otherwise dispose of, directly or indirectly, the shares of common stock, par value $0.001 per share, of the Buyer (“Buyer Common Stock”) and 7(cissued in the Holder’s favor by the Buyer within 14 days of the Effective Date in connection with the Scheme (each such issued shares of Buyer Common Stock, as applicable, the “Locked-Up Shares”), each NET Power Holder agrees with for twelve (12) months following the Company that it, he or she shall not Transfer any Lock-up Shares effective date of such NET Power issuance of Buyer Common Stock in favor of the Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period such twelve (12)-month period, the “Lock-upUp Period”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares during the Lock-Up Period.
(b) Notwithstanding the provisions set forth in of Section 7(a1(a), any NET Power Holder or its Permitted Transferees may Transfer the Lock-up Shares of such NET Power Holder (if any and to the extent applicable) during the Lock-up Period Up Period, the Holder may transfer all or a portion of the Locked-Up Shares: (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree in writing, in form and substance reasonably satisfactory to any of such NET Power Holder’s Permitted Transferees; or the Buyer, to be bound by the restrictions set forth in this Section 1, (ii) to the Holder’s affiliates (including, if applicable, commonly controlled or managed investment funds (or to any member, shareholder or limited or general partner of any such investment funds)) who execute a written joinder to this Agreement; provided that the Holder’s affiliates agree in connection with a liquidationwriting, in form and substance reasonably satisfactory to the Buyer, to be bound by the restrictions set forth in this Section 1, or (iii) pursuant to any transaction approved or recommended by the Buyer’s board of directors, including any tender offer, stock split, share subdivision or consolidation, bonus issue, dividend or combination, or any reclassification, recapitalization, merger, stock exchangeamalgamation, reorganizationconsolidation, tender offer approved by the Board or a duly authorized committee thereof exchange or other similar transaction which results in all reorganization. For purposes hereof, “affiliate” shall mean, as applied to any entity, any other entity directly or indirectly controlling, controlled by, or under direct or indirect common control with, such entity, or any director, manager or officer of such entity (for purposes hereof, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any entity, means the possession, directly or indirectly, of the Company’s Stockholders having power to direct or cause the right to exchange their shares direction of Common Stock (including any Company Interests exchangeable for shares the management and policies of Common Stock in connection therewith) for cashsuch entity, securities whether through the ownership of voting securities, by contract or other property subsequent to the Closing Dateotherwise).
(c) Notwithstanding The Holder, for the provisions duration of the Lock-Up Period, consents to the entry of stop transfer instructions with the Buyer’s transfer agent and registrar against the transfer of the Locked-Up Shares except in compliance with the restrictions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 71.
(d) With respect to PriceThe Holder acknowledges that the Locked-Based LockUp Shares bear the following legend evidencing the lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification.
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or Section 1 (which legend the governing documents Buyer shall cause to be removed promptly upon the end of the Company and OpCo as of the date hereofapplicable Lock-Up Period): “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE OR BOOK ENTRY POSITION ARE SUBJECT TO RESTRICTIONS ON TRANSFER FOR TWELVE MONTHS FOLLOWING THE EFFECTIVE DATE OF THEIR ISSUANCE PURSUANT TO A LOCK-UP AGREEMENT, AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF BY THE HOLDER PRIOR TO THE EXPIRATION OF SUCH PERIOD WITHOUT THE CONSENT OF THE COMPANY. A COPY OF THE LOCK-UP AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY AND MAY BE OBTAINED UPON WRITTEN REQUEST OF THE SECRETARY OF THE CORPORATION.”
Appears in 1 contract
Lock-Up. (a) Subject to Sections 7(b) and 7(c), each NET Power Each Company Holder agrees with the Company that it, he or she shall not to effect any Transfer any Lock-up Shares of such NET Power Holder (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”). For the avoidance of doubt, the Lock-up shall not apply to any Company Interests, warrants or other securities of the Company (whether acquired in the open market, directly from the Company, upon exercise of any warrants or otherwise) other than the Lock-up Shares. Nothing in this Section 7 shall prohibit a NET Power Holder from the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the Transfer of Lock-Up Shares held by such Company Holder during the Lock-Up Period; provided, that such prohibition shall not apply to Transfers permitted pursuant to Section 6.06(c).
(b) Notwithstanding the provisions set forth in Section 7(a), any NET Power Holder or its Permitted Transferees may Transfer During the Lock-up Up Period, any purported Transfer of any Lock-Up Shares of such NET Power Holder (if any not in accordance with this Agreement shall be null and void. Each Company Xxxxxx acknowledges and agrees that, notwithstanding anything to the extent applicablecontrary, the Lock-Up Shares held by such Company Holder shall remain subject to any restrictions on Transfer under applicable securities laws, including all applicable holding periods under the Securities Act and other rules of the SEC.
(c) Notwithstanding Section 6.06(a), during the Lock-up Period Up Period, each Company Holder may Transfer, without the consent of Acquiror, any of such Company Holder’s Lock-Up Shares to (i) to any of such NET Power Company Holder’s Permitted Transferees; or , upon written notice to Acquiror, (ii) in connection with a the case of an individual, by virtue of laws of descent and distribution upon death of the individual or (iii) pursuant to any liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof exchange or other similar transaction which results in all of the CompanyAcquiror’s Stockholders shareholders having the right to exchange their shares of Acquiror Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.
Closing; provided, that in connection with any Transfer of such Lock-Up Shares pursuant to this Section 6.06(c), (cx) the restrictions and obligations contained in this Section 6.06 will continue to apply to such Lock-Up Shares after any Transfer of such Lock-Up Shares and, upon request by Acquiror, such Transferee shall agree to be bound by such restrictions and obligations in writing and acknowledged by Acquiror, and (y) the Transferee of such Lock-Up Shares shall have no rights under the Registration Rights Agreement, unless such Transferee is a Permitted Transferee. Notwithstanding the foregoing provisions set forth in Section 7(a), the retirement of shares of Class B Common Stock pursuant to Section 4.3(b) of the Charter shall not be deemed a Transfer for purposes of this Section 7.
(d) With respect 6.06, a Company Holder may not make a Transfer to Price-Based Lock-up Shares, notwithstanding anything contained herein to a Permitted Transferee if such Transfer has as a purpose the contrary, if, following the Closing, the last sale price avoidance of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as is otherwise undertaken in contemplation of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least 15 days after the Closing, exceeds (i) $12.00 per share, then each of the NET Power Holders, together with its Permitted Transferees, may Transfer their Price-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Price-Based Lock-up Shares Beneficially Owned by such NET Power Holder and its Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Price-Based Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “NET Power Holders Price-Based Shares”) during the Lock-Up Period without restriction under this Section 7, (ii) $14.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer up to an additional one-third of its NET Power Holders Price-Based Shares in excess of the NET Power Holders Price-Based Shares described in the foregoing clause (i) (i.e., up to two-thirds of its NET Power Holders Price-Based Shares in the aggregate) without restriction under this Section 7, and (iii) $16.00 per share, then each NET Power Holder, together with its Permitted Transferees, may Transfer any of its NET Power Holders Price-Based Shares without restriction under this Section 7.
(e) With respect to Time-Based Lock-up Shares, notwithstanding anything contained herein to the contrary, if, following the Closing, the trading share price on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the NYSE, for any 20 trading days within any 30 consecutive trading-day period commencing at least six months after the date of Closing, exceeds $12.00 per share, then the NET Power Holders, together with their Permitted Transferees, may Transfer any of their Time-Based Lock-up Shares during the Lock-up Period without restriction under this Section 7.
(f) Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that, (i) if any Time-Based Lock-up Shares of any NET Power Holder or Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Time-Based Lock-up Shares”) of any Sponsor Party (as defined in the Sponsor Letter Agreement), are directly or indirectly (by waiver, amendment or otherwise) released from any of avoiding the restrictions on Transfer under this Transfers in Section 7 or under the Sponsor Letter Agreement, as applicable, then the Time-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Time-Based Lock-up Shares or Sponsor Time-Based Lock-up Shares subject to such release; and (ii) if any Price-Based Lock-up Shares of any NET Power Holder or Extended Lock-up Shares (as defined in the Sponsor Letter Agreement, “Sponsor Price-Based Lock-up Shares”) of and Sponsor Party, are directly or indirectly (by waiver, amendment or otherwise) released from any of the restrictions on Transfer under this Section 7 or under the Sponsor Letter Agreement, as applicable, then the Price-Based Lock-up Shares of each other Stockholder Party, Sponsor Party or their Permitted Transferees, as applicable, shall, unless such person consents otherwise in writing, also be released in a proportionate manner, and at the same time or times, as the other Price-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares subject to such release. In the event that the Sponsor Letter Agreement is amended or otherwise modified in a manner with respect to the Sponsor Time-Based Lock-up Shares or Sponsor Price-Based Lock-up Shares favorable to Sponsor and such amendment or modification, if applied to this Agreement with respect to the Time-Based Lock-up Shares or Price-Based Lock-up Shares, as applicable, would also be favorable to any of the NET Power Holders, each such NET Power Holder shall be afforded the benefits of, and this Agreement shall be deemed amended or modified to give effect to, such amendment or modification. In the event this Agreement is deemed amended or modified pursuant to the immediately preceding sentence, the Company shall notify each NET Power Holder within two (2) business days of the occurrence of such amendment or modification6.06(a).
(g) For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of the Company Interests Beneficially Owned by the NET Power Holders and their respective Permitted Transferees under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.
Appears in 1 contract