Participation Right. Until thirty (30) days after the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each Purchaser. (a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three (3) Trading Days after the Company’s delivery to such Purchaser of such Pre-Notice, and only upon a written request by such Purchaser, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, and (C) offer to issue and sell to or exchange with such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount. (b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s receipt of such new Offer Notice. (c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto. (d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a) above. (e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel. (f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement. (g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company. (h) Notwithstanding anything to the contrary in this Section 4.12 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b). (i) The restrictions contained in this Section 4.12 shall not apply in connection with the Exempt Issuance.
Appears in 5 contracts
Samples: Securities Purchase Agreement (Fangdd Network Group Ltd.), Securities Purchase Agreement (Fangdd Network Group Ltd.), Securities Purchase Agreement (Fangdd Network Group Ltd.)
Participation Right. Until thirty (30) days after At any time on or prior to the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries no BC Entity shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 5% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities (as defined in the Notes). The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 4 contracts
Samples: Securities Purchase Agreement (Adagio Medical Holdings, Inc.), Convertible Securities Purchase Agreement (Adagio Medical Holdings, Inc.), Convertible Securities Purchase Agreement (ARYA Sciences Acquisition Corp IV)
Participation Right. Until thirty (30) days after the Closing DateAt any time any Notes remain outstanding, neither the Company nor any of its Subsidiaries shall, shall directly or indirectlyindirectly issue, effect offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities (as defined below), any indebtedness, any preferred stock or any purchase rights (any such issuance, offer, sale, grant, disposition or announcement, each, a “Subsequent Placement Placement”), unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five one (51) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the later of (x) twenty-four hours or (y) the end of the fifth first (5th1st) Business Day Day, as applicable, after such PurchaserBuyer’s actual receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth later of (5thx) twenty-four hours or (y) the end of the first (1st) Business Day Day, as applicable, after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities (as defined in the Notes). The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 4 contracts
Samples: Securities Purchase Agreement (Evofem Biosciences, Inc.), Securities Purchase Agreement (Evofem Biosciences, Inc.), Securities Purchase Agreement (Evofem Biosciences, Inc.)
Participation Right. Until thirty (30) days after the Closing DateFor so long as this Warrant is outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities (as defined below), any debt, any preferred shares or any purchase rights (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.125. The Company acknowledges and agrees that the right set forth in this Section 4.12 5 is a right granted by the Company, separately, to each PurchaserQualified Holder.
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Qualified Holder a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Qualified Holder that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Qualified Holder within three (3) Trading Days after the Company’s delivery to such Purchaser Qualified Holder of such Pre-Notice, and only upon a written request by such PurchaserQualified Holder, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Qualified Holder an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Qualified Holder in accordance with the terms of the Offer such PurchaserQualified Holder’s pro rata portion of thirty percent (30%) % of the Offered Securities, provided that the number of Offered Securities which such Purchaser Qualified Holder shall have the right to subscribe for under this Section 4.12 5 shall be (x) based on such PurchaserQualified Holder’s pro rata portion of the aggregate number of Purchased Shares purchased hereunder by all Purchasers Qualified Holders (the “Basic Amount”), and (y) with respect to each Purchaser Qualified Holder that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Qualified Holders as such Purchaser Qualified Holder shall indicate it will purchase or acquire should the other Purchasers Qualified Holders subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Qualified Holder shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser Qualified Holder must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserQualified Holder’s Basic Amount that such Purchaser Qualified Holder elects to purchase and, if such Purchaser Qualified Holder shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Qualified Holder elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Qualified Holders are less than the total of all of the Basic Amounts, then each Purchaser Qualified Holder who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Qualified Holder who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Qualified Holder bears to the total Basic Amounts of all Purchasers Qualified Holders that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Qualified Holder a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Qualified Holder (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c5(c) above), then each Purchaser Qualified Holder may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Qualified Holder elected to purchase pursuant to Section 4.12(b5(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Qualified Holders pursuant to this Section 4.12 5 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Qualified Holder so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Qualified Holders in accordance with Section 4.12(a5(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Qualified Holder shall acquire from the Company, and the Company shall issue to such PurchaserQualified Holder, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d5(d) above if such Purchaser Qualified Holder has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Qualified Holder of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Qualified Holder of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Qualified Holder and its counsel.
(f) Any Offered Securities not acquired by a Purchaser Qualified Holder or other Persons in accordance with this Section 4.12 5 may not be issued, sold or exchanged until they are again offered to such Purchaser Qualified Holder under the procedures specified in this Agreement.
(g) The Company and each Purchaser Qualified Holder agree that if any Purchaser Qualified Holder elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Qualified Holder shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 5 and unless otherwise agreed to by such PurchaserQualified Holder, the Company shall either confirm in writing to such Purchaser Qualified Holder that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Qualified Holder will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserQualified Holder, such transaction shall be deemed to have been abandoned and such Purchaser Qualified Holder shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Qualified Holder with another Offer Notice and such Purchaser Qualified Holder will again have the right of participation set forth in this Section 4.125. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Qualified Holder in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b5(b).
(i) The restrictions contained in this Section 4.12 5 shall not apply in connection with the issuance of any Exempt Issuance. The Company shall not circumvent the provisions of this Section 5 by providing terms or conditions to one Qualified Holder that are not provided to all Qualified Holders.
Appears in 4 contracts
Samples: Ordinary Shares Purchase Warrant (Jeffs' Brands LTD), Ordinary Shares Purchase Warrant (Jeffs' Brands LTD), Ordinary Shares Purchase Warrant (Jeffs' Brands LTD)
Participation Right. Until thirty (30) days after the Closing DateFor so long as this Warrant is outstanding by a Qualified Holder, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities (as defined below), any debt, any preferred shares or any purchase rights (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.125. The Company acknowledges and agrees that the right set forth in this Section 4.12 5 is a right granted by the Company, separately, to each PurchaserQualified Holder.
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Qualified Holder a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Qualified Holder that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Qualified Holder within three (3) Trading Days after the Company’s delivery to such Purchaser Qualified Holder of such Pre-Notice, and only upon a written request by such PurchaserQualified Holder, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Qualified Holder an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Qualified Holder in accordance with the terms of the Offer such PurchaserQualified Holder’s pro rata portion of thirty percent (30%) % of the Offered Securities, provided that the number of Offered Securities which such Purchaser Qualified Holder shall have the right to subscribe for under this Section 4.12 5 shall be (x) based on such PurchaserQualified Holder’s pro rata portion of the aggregate number of Purchased Shares purchased hereunder by all Purchasers Qualified Holders (the “Basic Amount”), and (y) with respect to each Purchaser Qualified Holder that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Qualified Holders as such Purchaser Qualified Holder shall indicate it will purchase or acquire should the other Purchasers Qualified Holders subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Qualified Holder shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser Qualified Holder must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserQualified Holder’s Basic Amount that such Purchaser Qualified Holder elects to purchase and, if such Purchaser Qualified Holder shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Qualified Holder elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Qualified Holders are less than the total of all of the Basic Amounts, then each Purchaser Qualified Holder who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Qualified Holder who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Qualified Holder bears to the total Basic Amounts of all Purchasers Qualified Holders that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Qualified Holder a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Qualified Holder (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c5(c) above), then each Purchaser Qualified Holder may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Qualified Holder elected to purchase pursuant to Section 4.12(b5(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Qualified Holders pursuant to this Section 4.12 5 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Qualified Holder so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Qualified Holders in accordance with Section 4.12(a5(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Qualified Holder shall acquire from the Company, and the Company shall issue to such PurchaserQualified Holder, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d5(d) above if such Purchaser Qualified Holder has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Qualified Holder of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Qualified Holder of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Qualified Holder and its counsel.
(f) Any Offered Securities not acquired by a Purchaser Qualified Holder or other Persons in accordance with this Section 4.12 5 may not be issued, sold or exchanged until they are again offered to such Purchaser Qualified Holder under the procedures specified in this Agreement.
(g) The Company and each Purchaser Qualified Holder agree that if any Purchaser Qualified Holder elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Qualified Holder shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 5 and unless otherwise agreed to by such PurchaserQualified Holder, the Company shall either confirm in writing to such Purchaser Qualified Holder that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Qualified Holder will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserQualified Holder, such transaction shall be deemed to have been abandoned and such Purchaser Qualified Holder shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Qualified Holder with another Offer Notice and such Purchaser Qualified Holder will again have the right of participation set forth in this Section 4.125. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Qualified Holder in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b5(b).
(i) The restrictions contained in this Section 4.12 5 shall not apply in connection with the issuance of any Exempt Issuance. The Company shall not circumvent the provisions of this Section 5 by providing terms or conditions to one Qualified Holder that are not provided to all Qualified Holders.
Appears in 4 contracts
Samples: Common Stock Purchase Warrant (Elate Group, Inc.), Common Stock Purchase Warrant (Elate Group, Inc.), Common Stock Purchase Warrant (Elate Group, Inc.)
Participation Right. Until thirty (30) days after the Closing DateFor so long as this Warrant is outstanding by a Qualified Holder, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities (as defined below), any debt, any preferred shares or any purchase rights (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.125. The Company acknowledges and agrees that the right set forth in this Section 4.12 5 is a right granted by the Company, separately, to each PurchaserQualified Holder.
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Qualified Holder a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Qualified Holder that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Qualified Holder within three (3) Trading Days after the Company’s delivery to such Purchaser Qualified Holder of such Pre-Notice, and only upon a written request by such PurchaserQualified Holder, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Qualified Holder an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Qualified Holder in accordance with the terms of the Offer such PurchaserQualified Holder’s pro rata portion of thirty percent (30%) % of the Offered Securities, provided that the number of Offered Securities which such Purchaser Qualified Holder shall have the right to subscribe for under this Section 4.12 5 shall be (x) based on such PurchaserQualified Holder’s pro rata portion of the aggregate number of Purchased Shares purchased hereunder by all Purchasers Qualified Holders (the “Basic Amount”), and (y) with respect to each Purchaser Qualified Holder that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Qualified Holders as such Purchaser Qualified Holder shall indicate it will purchase or acquire should the other Purchasers Qualified Holders subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Qualified Holder shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser Qualified Holder must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserQualified Holder’s Basic Amount that such Purchaser Qualified Holder elects to purchase and, if such Purchaser Qualified Holder shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Qualified Holder elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Qualified Holders are less than the total of all of the Basic Amounts, then each Purchaser Qualified Holder who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Qualified Holder who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Qualified Holder bears to the total Basic Amounts of all Purchasers Qualified Holders that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Qualified Holder a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Qualified Holder (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c5(c) above), then each Purchaser Qualified Holder may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Qualified Holder elected to purchase pursuant to Section 4.12(b5(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Qualified Holders pursuant to this Section 4.12 5 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Qualified Holder so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Qualified Holders in accordance with Section 4.12(a5(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Qualified Holder shall acquire from the Company, and the Company shall issue to such PurchaserQualified Holder, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d5(d) above if such Purchaser Qualified Holder has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Qualified Holder of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Qualified Holder of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Qualified Holder and its counsel.
(f) Any Offered Securities not acquired by a Purchaser Qualified Holder or other Persons in accordance with this Section 4.12 5 may not be issued, sold or exchanged until they are again offered to such Purchaser Qualified Holder under the procedures specified in this Agreement.
(g) The Company and each Purchaser Qualified Holder agree that if any Purchaser Qualified Holder elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Qualified Holder shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 5 and unless otherwise agreed to by such PurchaserQualified Holder, the Company shall either confirm in writing to such Purchaser Qualified Holder that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Qualified Holder will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserQualified Holder, such transaction shall be deemed to have been abandoned and such Purchaser Qualified Holder shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Qualified Holder with another Offer Notice and such Purchaser Qualified Holder will again have the right of participation set forth in this Section 4.125. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Qualified Holder in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b5(b).
(i) The restrictions contained in this Section 4.12 5 shall not apply in connection with the issuance of any Exempt Issuance. The Company shall not circumvent the provisions of this Section 5 by providing terms or conditions to one Qualified Holder that are not provided to all Qualified Holders.
Appears in 4 contracts
Samples: Ordinary Shares Purchase Warrant (Wearable Devices Ltd.), Ordinary Shares Purchase Warrant (Wearable Devices Ltd.), Ordinary Shares Purchase Warrant (Wearable Devices Ltd.)
Participation Right. Until thirty At any time on or prior to the later of (30x) days after the date no Notes remain outstanding and (y) the second anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserInvestor Buyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Investor Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Investor Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Investor Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Investor Buyer of such Pre-Notice, and only upon a written request by such PurchaserInvestor Buyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Investor Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Investor Buyer in accordance with the terms of the Offer such PurchaserInvestor Buyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Investor Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserInvestor Buyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Investor Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Investor Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Investor Buyers as such Purchaser Investor Buyer shall indicate it will purchase or acquire should the other Purchasers Investor Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Investor Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Investor Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserInvestor Buyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserInvestor Buyer’s Basic Amount that such Purchaser Investor Buyer elects to purchase and, if such Purchaser Investor Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Investor Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Investor Buyers are less than the total of all of the Basic Amounts, then each Purchaser Investor Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Investor Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Investor Buyer bears to the total Basic Amounts of all Purchasers Investor Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Investor Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserInvestor Buyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five ten (510) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Investor Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Investor Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Investor Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Investor Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Investor Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Investor Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Investor Buyer shall acquire from the Company, and the Company shall issue to such PurchaserInvestor Buyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Investor Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Investor Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Investor Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Investor Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Investor Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Investor Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Investor Buyer agree that if any Purchaser Investor Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Investor Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserInvestor Buyer, the Company shall either confirm in writing to such Purchaser Investor Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Investor Buyer will not be in possession of any material, non-public information, by the fifth tenth (5th10th) Business Day following delivery of the Offer Notice. If by such fifth tenth (5th10th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserInvestor Buyer, such transaction shall be deemed to have been abandoned and such Purchaser Investor Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Investor Buyer with another Offer Notice and such Purchaser Investor Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Investor Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Investor Buyer that are not provided to all.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Helios & Matheson Analytics Inc.), Securities Purchase Agreement (Helios & Matheson Analytics Inc.), Securities Purchase Agreement (Helios & Matheson Analytics Inc.)
Participation Right. Until thirty At any time on or prior to the earlier of (30i) days after the Closing Datethird anniversary of the Spin-Off and (ii) the one-year anniversary of the Spin-Off if as of such date, all of the cash held in the Restricted Funds Account has not been released to the Company pursuant to Section 13(p) of the Notes, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three two (32) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five ten (510) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, (y) shall include any representation, warranty or covenant more adverse to such Buyer than as set forth in the Transaction Documents and (z) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
(x) Notwithstanding the foregoing, if any Offer to which this Section 4(o) applies is to be conducted or marketed on a “bought deal” or “overnight” or “intraday” basis, then (i) the period for the Company to deliver a Pre-Notice and Offer Notice shall be “as soon as reasonably practicable and without undue delay” by the Company acting reasonably and in good faith and (ii) the period for the Purchaser to deliver a Notice of Acceptance under shall be “as soon as reasonably practicable and without undue delay and in no event more than twenty four (24) hours after receipt of the Pre-Notice or Offer Notice, as applicable” by the Purchaser, in each case having regard to the specific circumstances surrounding such Offer.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Cryptyde, Inc.), Securities Purchase Agreement (Cryptyde, Inc.), Securities Purchase Agreement (Vinco Ventures, Inc.)
Participation Right. Until thirty (30) days after the fifth anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(u). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(u) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days (as defined in the Warrants) prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 20% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(u) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(u)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(u)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(u) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(u)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(u)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(u) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(u) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(u). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(u)(ii).
(iix) The restrictions contained in this Section 4.12 4(u) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities (as defined in the Warrants). The Company shall not circumvent the provisions of this Section 4(u) by providing terms or conditions to one Buyer that are not provided to all.
(x) For the purpose of this Agreement, the following definitions shall apply:
Appears in 3 contracts
Samples: Securities Purchase Agreement (YayYo, Inc.), Securities Purchase Agreement (YayYo, Inc.), Securities Purchase Agreement (YayYo, Inc.)
Participation Right. Until thirty (30) days after the Closing DateAt any time any Notes remain outstanding, neither the Company nor any of its Subsidiaries shall, shall directly or indirectlyindirectly issue, effect offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities, any indebtedness, any preferred stock or any purchase rights (any such issuance, offer, sale, grant, disposition or announcement, each, a “Subsequent Placement Placement”), unless the Company shall have first complied with this Section 4.124(s). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(s) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five one (51) Trading Days Day prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(s) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the later of (x) twenty-four hours or (y) the end of the fifth first (5th1st) Business Day Day, as applicable, after such PurchaserBuyer’s actual receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth later of (5thx) twenty-four hours or (y) the end of the first (1st) Business Day Day, as applicable, after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(s)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(s)(iii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(s) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(s)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(s)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(s) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(s) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(s). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(s)(ii).
(iix) The restrictions contained in this Section 4.12 4(s) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities (as defined in the Notes). The Company shall not circumvent the provisions of this Section 4(s) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Evofem Biosciences, Inc.), Securities Purchase Agreement (Evofem Biosciences, Inc.), Securities Purchase Agreement (Evofem Biosciences, Inc.)
Participation Right. Until thirty (30) days after the Closing DateAt any time any Notes remain outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(n). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(n) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five two (52) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three one (31) Trading Days Day after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(n) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer. “Subsequent Placement” means any direct or indirect issuance, in whole offer, sale, grant of any option or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled right to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding or otherwise disposal by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice its Subsidiaries of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions any equity security or any equity-linked or related security (including, without limitation, unit prices and interest rates) any “equity security” (as that are not more favorable to term is defined under Rule 405 promulgated under the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c) above1933 Act), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Convertible Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection withOptions, any agreement previously entered into with the Company debt, any preferred stock or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(bpurchase rights).
(i) The restrictions contained in this Section 4.12 shall not apply in connection with the Exempt Issuance.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Aclarion, Inc.), Securities Purchase Agreement (Aclarion, Inc.), Securities Purchase Agreement (Aclarion, Inc.)
Participation Right. Until thirty (30) days after the Closing DateFrom April 7, neither 2012 until October 7, 2013, the Company nor any of its Subsidiaries shallshall not, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124.9. The Company acknowledges and agrees that the right set forth in this Section 4.12 4.9 is a right granted by the Company, separately, to each PurchaserInvestor.
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Investor a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: either (x) (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (yB) a statement informing such Investor that it is entitled to receive an Offer Notice with respect to such Subsequent Placement upon its written request and (C) a statement that the statement in clause (xA) above does not constitute material, non-public information and or (zy) a statement informing by the Company or an agent to the Company asking if such Purchaser that it Investor is entitled willing to receive an Offer Notice (as defined below) material, non-public information with respect to such Subsequent Placement upon its written requestthe Company. Upon the written request of a Purchaser Investor within three (3) Trading Days after the Company’s delivery to such Purchaser Investor of such Pre-Notice, and only upon a written request by such PurchaserInvestor, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Investor an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Investor in accordance with the terms of the Offer such PurchaserInvestor’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (xa) based on such PurchaserInvestor’s pro rata portion of the aggregate number original principal amount of the Common Shares purchased hereunder by all Purchasers Investors (the “Basic Amount”), and (yb) with respect to each Purchaser Investor that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Investors as such Purchaser Investor shall indicate it will purchase or acquire should the other Purchasers Investors subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser Investor must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserInvestor’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserInvestor’s Basic Amount that such Purchaser Investor elects to purchase and, if such Purchaser Investor shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Investor elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Investors are less than the total of all of the Basic Amounts, then each Purchaser such Investor who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Investor who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Investor bears to the total Basic Amounts of all Purchasers Investors that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Investor a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserInvestor’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Investor (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4.9(c) above), then each Purchaser such Investor may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Investor elected to purchase pursuant to Section 4.12(b4.9(b) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Investors pursuant to this Section 4.12 4.9 prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Investor so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Investors in accordance with Section 4.12(a4.9(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Investor shall acquire from the Company, and the Company shall issue to such PurchaserInvestor, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Investor of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Investor of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Investor and its counsel.
(f) Any Offered Securities not acquired by a Purchaser Investor or other Persons in accordance with this Section 4.12 4.9 may not be issued, sold or exchanged until they are again offered to such Purchaser Investor under the procedures specified in this Agreement.
(g) The Company and each Purchaser Investor agree that if any Purchaser Investor elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Investor shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 4.9 and unless otherwise agreed to by such PurchaserInvestor, the Company shall either confirm in writing to such Purchaser Investor that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Investor will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserInvestor, such transaction shall be deemed to have been abandoned and such Purchaser Investor shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Investor with another Offer Notice and such Purchaser Investor will again have the right of participation set forth in this Section 4.124.9. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Investor in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b).
(i) The restrictions contained in this Section 4.12 4.9 shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4.9 by providing terms or conditions to one Investor that are not provided to all.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Pacific Ethanol, Inc.), Securities Purchase Agreement (Pacific Ethanol, Inc.), Securities Purchase Agreement (Pacific Ethanol, Inc.)
Participation Right. Until thirty From the date hereof until the date that is the twelve (3012) days after month anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect or enter into any agreement to effect any Subsequent Placement for cash consideration (a “Subsequent Financing”), unless the Company shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each Purchaser4(o).
(ai) At least five (5) Trading Days prior to any Between 4:00 p.m. and 7:00 p.m., New York time, on the Business Day immediately preceding the Business Day of a proposed or intended Subsequent PlacementFinancing (each, a “Subsequent Financing Date”), the Company shall deliver to each Purchaser the Buyer a written notice of its intention to effect a Subsequent Financing (each such noticeeach, a “Pre-Notice”) (the Company shall use best efforts to ensure that the Buyer has received and acknowledged receipt of the Pre-Notice within such time period), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent PlacementPlacement (without disclosing the specific terms or conditions of the proposed Subsequent Financing or the securities to be offered and sold therein, (y) a representation that such statement that the statement (described in clause (x) above above) does not constitute material, non-public information regarding the Company, its business or its securities and (z) a statement informing such Purchaser the Buyer that it is entitled to receive an Offer a Subsequent Financing Notice (as defined below) containing material, non-public information with respect to such Subsequent Placement upon its written request. Upon the timely written request of in accordance with this Section 4(o).
(ii) If the Buyer consents to receive material, non-public information with respect to such Subsequent Placement, the Buyer shall deliver a Purchaser within three (3) Trading Days after written request therefor to the Company’s delivery to such Purchaser of , not later than 9:00 p.m., New York time, on the Business Day on which the Buyer properly received such Pre-NoticeNotice from the Company, and upon such written request by the Buyer delivered to the Company prior to such time, and only upon a such written request by such Purchaserthe Buyer, the Company shall promptlypromptly thereafter, but no not later than one two (12) Trading Day hours after such requestwritten request by the Buyer was properly delivered to the Company, deliver to such Purchaser an irrevocable the Buyer a written notice of the proposed Subsequent Financing (the a “Offer Subsequent Financing Notice”), which shall (A) describe in reasonable detail the proposed terms and conditions of any such Subsequent Financing, including, without limitation, the proposed or intended issuance or sale or exchange (the “Offer”) terms of the securities being to be offered and sold in such Subsequent Financing (the “Offered Securities”) in a ), the total amount of proceeds intended to be raised and the Person or Persons through or with whom such Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered SecuritiesFinancing is proposed to be effected, (B) describe include, as an attachment thereto, a term sheet or similar document setting forth the price material terms and other conditions of such Subsequent Financing, including, without limitation, the material terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchangedSecurities, and (C) offer to issue and sell to or exchange with such Purchaser in accordance with the Buyer, upon the terms and subject to the conditions of the Offer such Purchaser’s pro rata portion of thirty percent (30%) of Subsequent Financing set forth in the Offered SecuritiesSubsequent Financing Notice, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion 50% of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription AmountParticipation Maximum”), which process shall ) at the same price per Offered Security to be repeated until paid by each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amountother Person participating in such Subsequent Financing.
(biii) To accept an OfferIn the event that the Buyer elects to participate in such Subsequent Financing for all or any part of the Participation Maximum, in whole or in part, such Purchaser the Buyer must deliver a written notice to the Company prior to the end later of (i) 11:00 a.m., New York time, on the fifth (5th) Business Day on which such proposed or intended Subsequent Financing shall occur and (ii) two (2) hours after such Purchaser’s receipt of the Offer time that the applicable Subsequent Financing Notice is received by the Buyer (the “Offer PeriodNotice Termination Time”), setting forth forth: (A) a statement that the portion Buyer elects to participate in such Subsequent Financing, (B) the amount of such Purchaser’s Basic Amount Offered Securities, which shall not exceed the Participation Maximum, that such Purchaser the Buyer elects to purchase andin such Subsequent Financing, if such Purchaser shall elect and (C) a representation that the Buyer has sufficient funds available to purchase all of its Basic Amount, such Offered Securities in such Subsequent Financing on the Undersubscription Amount, if any, that such Purchaser elects terms and subject to purchase the conditions set forth in the applicable Subsequent Financing Notice received by the Buyer (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Company does not receive a Notice of Acceptance from the Buyer prior to the applicable Notice Termination Time, the Buyer shall be entitled deemed to purchase, have elected not to participate in addition to the Basic Amounts subscribed for, Subsequent Financing on the Undersubscription Amount it has subscribed for; provided, however, if terms set forth in the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding applicable Subsequent Financing Notice received by the Company to the extent it deems reasonably necessary. Buyer.
(iv) Notwithstanding the foregoing, if the Company desires to change, modify or amend any of the terms or conditions of a Subsequent Financing, or the Offered Securities to be sold therein, set forth in a Subsequent Financing Notice delivered to the Buyer hereunder, the Company shall promptly, but not later than 10:00 p.m., New York time, on the Business Day immediately preceding the Business Day on which such Subsequent Financing is intended to occur, deliver to the Buyer a new written Subsequent Financing Notice describing in reasonable detail the terms and conditions of such Subsequent Financing and Offered Securities, as amended, and the Offer Buyer will again have the right to participate in such Subsequent Financing upon the terms and conditions, as amended, set forth in such new Subsequent Financing Notice, provided the Buyer delivers to the Company a Notice of Acceptance providing the information described in the penultimate sentence of Section 4(o)(iii) above, prior to the expiration Notice Termination Time with respect to such new Subsequent Financing Notice, which shall be the later of (I) 11:00 a.m., New York time, on the Offer PeriodBusiness Day on which such proposed Subsequent Financing providing for such amended terms and conditions as set forth in the new Subsequent Financing Notice delivered to the Buyer hereunder is intended to occur and (II) two (2) hours after the time that such new Subsequent Financing Notice was received by the Buyer. If by the Notice Termination Time, the Buyer has delivered to the Company a Notice of Acceptance in which it has elected to purchase in such Subsequent Financing an aggregate amount of Offered Securities that is greater than the Participation Maximum, the Buyer shall be deemed to have elected to participate for the applicable Participation Maximum in the Subsequent Financing on the terms set forth in the applicable Subsequent Financing Notice received by the Buyer.
(v) If by the Notice Termination Time, the Buyer has elected to purchase in such Subsequent Financing an aggregate amount of Offered Securities that is equal to or less than the Participation Maximum, as reflected in an Acceptance Notice delivered by the Buyer to the Company prior to the Termination Time, or the Buyer has not elected to participate in such Subsequent Financing, then the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, issue and sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Buyer, including any Offered Securities the Buyer did not elect to purchase pursuant to a Purchaser Notice of Acceptance as part of the Participation Maximum (all such Offered Securities that are not designated in a Notice of Acceptance as Offered Securities to be purchased by the Buyer in such Subsequent Financing, the “Refused Other Securities”) ), pursuant to a definitive agreement(s) (the “Subsequent Placement Financing Agreement”), but only to the offerees described in the Offer Subsequent Financing Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer most recent Subsequent Financing Notice received by the Buyer and (B) to publicly announce (x) the execution of such Subsequent Placement Financing Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Financing Agreement or (II) the termination of such Subsequent Placement Financing Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Financing Agreement and any documents contemplated therein filed as exhibits thereto. If a definitive agreement containing the terms and conditions of such Subsequent Financing as set forth in the Subsequent Financing Notice delivered to the Buyer is not entered into by the Company for any reason within five (5) Business Days after the date the initial Subsequent Financing Notice for such Subsequent Financing was first delivered to the Buyer hereunder, the Company shall promptly, but not later than 10:00 p.m., New York time, on the Business Day immediately preceding the Business Day on which such Subsequent Financing is intended to occur, deliver to the Buyer a new written Subsequent Financing Notice describing in reasonable detail the terms and conditions of such Subsequent Financing and Offered Securities, as amended, and the Buyer will again have the right to participate in such Subsequent Financing upon the terms and conditions, as amended, set forth in such new Subsequent Financing Notice, provided the Buyer delivers to the Company a Notice of Acceptance providing the information described in the penultimate sentence of Section 4(o)(iii) above, prior to the Notice Termination Time with respect to such new Subsequent Financing Notice, which shall be the time period described in Section 4(o)(iv) above.
(dvi) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(v) above), then each Purchaser the Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser the Buyer elected to purchase pursuant to Section 4.12(b4(o)(iii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser the Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyer in accordance with Section 4.12(a4(o)(i) and (ii) above.
(evii) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser the Buyer shall acquire from the Company, and the Company shall issue to such Purchaserthe Buyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(vi) above if such Purchaser the Buyer has so elected, upon the terms and conditions specified in the OfferSubsequent Financing Agreement. The purchase by such Purchaser the Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser the Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser the Buyer and its counsel.
(f) . Any Offered Securities not acquired by a Purchaser the Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser the Buyer under the procedures specified in this AgreementSection 4(o).
(gviii) The Company and each Purchaser the Buyer agree that if any Purchaser the Buyer elects to participate in the OfferSubsequent Financing, neither the Subsequent Placement Financing Agreement with respect to such Offer Subsequent Financing nor any other transaction documents related thereto (collectively, the “Subsequent Placement Financing Documents”) shall include any term or provision whereby such Purchaser the Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hix) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such Purchaserthe Buyer, the Company shall either confirm in writing to such Purchaser the Buyer that the transaction with respect to the Subsequent Placement Financing has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser the Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Subsequent Financing Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaserthe Buyer, such transaction shall be deemed to have been abandoned and such Purchaser the Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser the Buyer with another Offer Subsequent Financing Notice and such Purchaser the Buyer will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o).
(ix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Trovagene, Inc.), Securities Purchase Agreement (Trovagene, Inc.), Securities Purchase Agreement (Trovagene, Inc.)
Participation Right. Until thirty At any time during the period commencing on the date hereof through the earlier of (30x) days after the Closing Datesix-month anniversary of the date hereof and (y) the date no Preferred Shares remain outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number of the Preferred Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five fifteen (515) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares, (iv) the Warrant Shares, (v) shares of Common Stock issued pursuant to the Permitted ATM and (vi) securities issued in connection with a bona fide public offering by the Company with a nationally recognized underwriter, in which event the Buyer shall maintain their right of participation, but will only receive the same notice as the other potential investors in such offering (each of the foregoing in clauses (i) through (vi), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Crown Electrokinetics Corp.), Securities Purchase Agreement (Crown Electrokinetics Corp.)
Participation Right. Until thirty (30) days after From the date hereof through the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (Ai) if a statement that the proposed Offer Notice (as defined below) constitutes or contains Company desires to provide such Buyer with material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) or, if the proposed Offer Notice does not constitute or contain materialpermissable hereunder, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer in any material respect prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice in any material respect and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Internet Media Services, Inc.), Securities Purchase Agreement (Fuse Science, Inc.)
Participation Right. Until thirty For a period of two (302) days after years following the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(q). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(q) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three two (32) Trading Days Day after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(q) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth second (5th2nd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report of Foreign Issuer on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(q)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(q)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(q) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(q)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(q)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(q) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be no less favorable to the Buyer than the registration rights contained in this Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(q) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(q). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(q)(ii).
(iix) The restrictions contained in this Section 4.12 4(q) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(q) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Top KingWin LTD), Securities Purchase Agreement (Top KingWin LTD)
Participation Right. Until thirty At any time on or prior to the eighteen (3018) days after month anniversary of the Closing Applicable Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 35% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number of the Common Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (American Rebel Holdings Inc), Securities Purchase Agreement (Reliance Global Group, Inc.)
Participation Right. Until thirty (30) days after From the date hereof through the six-month anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each Purchaser4(q).
(ai) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three two (32) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty up to twenty percent (3020%) in total of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(q) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number of Common Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(q)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(q)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(q) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(q)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(q)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(q) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(q) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice in accordance with, and subject to, the terms of this Section 4(q)and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(q). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(q)(ii).
(iix) The restrictions contained in this Section 4.12 4(q) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(q) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Kandi Technologies Group, Inc.), Securities Purchase Agreement (Kandi Technologies Group, Inc.)
Participation Right. Until thirty From the date hereof through the date on which Buyer no longer owns at least twenty percent (3020%) days after of the Closing DateCompany’s outstanding Common Stock (calculated assuming that the Preferred Stock is then fully converted into shares of Common Stock at the then-prevailing applicable Conversion Price (as defined in the Certificate of Designation)), neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each Purchaser4(l).
(ai) At least five fifteen (515) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have as equals the right to subscribe for under this Section 4.12 shall be greater of (xi) based on such Purchaserthe Buyer’s pro rata portion ownership percentage of the aggregate number of Shares purchased hereunder by all Purchasers Company’s Common Stock (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion as measured as of the Offered Securities attributable Business Day prior to distribution of the Basic Amounts Offer Notice and calculated assuming that the Preferred Stock is then fully converted into shares of other Purchasers Common Stock at the then-prevailing applicable Conversion Price (as such Purchaser shall indicate it will purchase defined in the Certificate of Designation)) or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”ii) fifty-one percent (51%), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company (a “Notice of Acceptance”) prior to the end of the fifth tenth (5th10th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount the Offered Securities that such Purchaser Buyer elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth tenth (5th10th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five twenty (520) Business Days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(l)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(l)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyer pursuant to this Section 4.12 4(l) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyer in accordance with Section 4.12(a4(l)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(l) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company (other than restrictions required by applicable securities laws on the resale of “restricted securities” (as that term is defined under Rule 144(a)(3)) being issued in the Subsequent Placement) or be required to consent to any amendment to or termination of, or grant any waiver, waiver or release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(l) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth twentieth (5th20th) Business Day following delivery of the Offer Notice. If by such fifth twentieth (5th20th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(l). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(l)(ii).
(iix) The restrictions contained in this Section 4.12 4(l) shall not apply in connection with the Exempt Issuanceissuance of (A) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below), provided that the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects Buyer; (B) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof, provided that the exercise or conversion price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) are amended to increase the number of shares issuable thereunder, and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed in any manner that adversely affects Buyer; and (C) the Conversion Shares (each of the foregoing in clauses (A) through (C), collectively the “Excluded Securities”). “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such; provided that as long as the Buyer owns at least twenty five percent (25%) of the Company’s outstanding Common Stock (calculated assuming that the Preferred Stock is then fully converted into shares of Common Stock at the then-prevailing applicable Conversion Price (as defined in the Certificate of Designation)), the consent of the Buyer shall be required to approve any Approved Share Plan. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 2 contracts
Samples: Securities Exchange Agreement (Advanced Environmental Recycling Technologies Inc), Securities Exchange Agreement (H.I.G. Aert, LLC)
Participation Right. Until thirty (30) days after the Closing DateAt any time any Preferred Shares remain outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any direct, or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise disposal of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, any debt, any preferred stock or any purchase rights) by the Company or any of its Subsidiaries (each, a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.124(p). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(p) is a right granted by the Company, separately, to each Purchaser.
(a) Buyer. At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 10% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(p) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number of the Preferred Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) . To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(c) . The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) . In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(p)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(p)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(p) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(p)(i) above.
(e) . Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(p)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(f) . Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(p) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(g) . The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
, and (hy) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement. Notwithstanding anything to the contrary in this Section 4.12 4(p) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(p). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(p)(ii).
(i) . The restrictions contained in this Section 4.12 4(p) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(p) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Class Over Inc. / DE), Securities Purchase Agreement (Battery Future Acquisition Corp.)
Participation Right. Until thirty (30) days after At any time on or prior to the fourth anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 33% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number of the Preferred Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Auddia Inc.), Securities Purchase Agreement (Auddia Inc.)
Participation Right. Until thirty (30) days after At any time during the Closing Dateperiod commencing on March 13, 2018 through and including September 13, 2019, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(q). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(q) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 55% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(q) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(q)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(q)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(q) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(q)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(q)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(q) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(q) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(q). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(q)(ii).
(iix) The restrictions contained in this Section 4.12 4(q) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(q) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (TimefireVR Inc.), Securities Purchase Agreement (TimefireVR Inc.)
Participation Right. Until thirty From the date hereof through the one (301) days after year anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) all of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number of Shares shares of Preferred Stock purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice in accordance with, and subject to, the terms of this Section 4(o) and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Novadel Pharma Inc), Securities Purchase Agreement (Novadel Pharma Inc)
Participation Right. Until thirty From the date hereof through the two (302) days after year anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five two (52) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three two (32) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) second Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) second Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) ten Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty thirty (6030) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of (I) any Excluded Securities or any Permitted Exchange, or (II) any shares of Common Stock issued or issuable in connection with strategic or commercial alliances, acquisitions, mergers, and strategic partnerships, provided, that (x) the primary purpose of such issuance is not to raise capital as determined in good faith by the board of directors of the Company, (y) the purchaser or acquirer of the securities in such issuance solely consists of either (A) the actual participants in such strategic or commercial alliance or strategic or commercial partnership, (B) the actual owners of such assets or securities acquired in such acquisition or merger or (C) the stockholders, partners or members of the foregoing Persons and (z) the number or amount of securities issued to such Persons by the Company shall not be disproportionate to each such Person’s actual participation in such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Company, as applicable. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Axion Power International, Inc.), Securities Purchase Agreement (Axion Power International, Inc.)
Participation Right. Until thirty (30) days after At any time on or prior to the second anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three two (32) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, (y) shall include any representation, warranty or covenant more adverse to such Buyer than as set forth in the Transaction Documents and (z) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Vinco Ventures, Inc.), Securities Purchase Agreement (Vinco Ventures, Inc.)
Participation Right. Until thirty (30) days From the date hereof until the date that is 18 months after the Initial Closing Date, neither the Company nor any of its Subsidiaries subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each Purchaser4.13.
(a) At least five (5) Trading Days days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each the Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the Company believes that the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such the Purchaser is willing to accept material non-public information or (B) if the Company believes that the proposed Offer Notice does not constitute or contain material, non-public information, (xy) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information Placement and (z) a statement informing such the Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three one (31) Trading Days day after the Company’s delivery to such the Purchaser of such Pre-Notice, and only upon a written request by such the Purchaser, the Company shall promptly, but no later than one (1) Trading Day after such request, promptly deliver to such the Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, and (C) offer to issue and sell to or exchange with such the Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) 8.75% in total of the Offered Securities, provided that . The Company shall not be permitted to deliver more than one such Offer Notice to a Purchaser in any sixty (60) day period nor shall the number Company be permitted to effect a Subsequent Placement within 18 months of Offered Securities which the Initial Closing Date without providing such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription AmountOffer Notice.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five fifteen (515) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a the Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(dc) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4.13(b) above), then each the Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such the Purchaser elected to purchase pursuant to Section 4.12(b4.13(a) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a) above.
(ed) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such the Purchaser shall acquire from the Company, and the Company shall issue to such the Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4.13(c) above if such the Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such the Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such the Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such the Company and the Purchaser and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(he) Notwithstanding anything to the contrary in this Section 4.12 4.13 and unless otherwise agreed to by such the Purchaser, the Company shall either confirm in writing to such the Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such the Purchaser will not be in possession of any material, non-public information, by the fifth tenth (5th10th) Business Day business day following delivery of the Offer Notice. If by such fifth tenth (5th10th) Business Daybusiness day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such the Purchaser, such transaction shall be deemed to have been abandoned and such the Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b)subsidiaries.
(if) The Company and each Purchaser agree that if any Purchaser elects to participate in the Subsequent Placement, the transaction documents related to the Subsequent Placement shall not include any term or provision whereby such Purchaser shall be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written consent of such Purchaser.
(g) The restrictions contained in this Section 4.12 4.13 shall not apply in connection with the any Exempt Issuance. Furthermore, notwithstanding any provision in this Section 4.13, the Company shall not be obligated to take any action that would violate applicable securities laws.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Intercontinental Exchange, Inc.), Securities Purchase Agreement (Bakkt Holdings, Inc.)
Participation Right. Until thirty (30) days after At any time on or prior to the second anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one two (12) Trading Day Days after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, (y) representation and warranties of an Investor in the Subsequent Placement Documents shall not be more restrictive than those of the Buyers in this Agreement (other than such changes as necessary to comply with applicable law, rules and regulations, the manner of sale of such security in such Subsequent Placement and/or the type of such security to be sold in such Subsequent Placement) and (z) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (BIMI International Medical Inc.), Securities Purchase Agreement (BOQI International Medical, Inc.)
Participation Right. Until thirty (30) days after At any time on or prior to the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 25% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, (y) shall include any representation, warranty or covenant more adverse to such Buyer than as set forth in the Transaction Documents and (z) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with (A) the Exempt Issuanceissuance of any Excluded Securities and (B) any shares of Common Stock or Options issued pursuant to a firm commitment bone fide underwritten public offering by the Company. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Clean Vision Corp), Securities Purchase Agreement (Clean Vision Corp)
Participation Right. Until thirty At any time on or prior to the later of (30x) days after the Closing Datedate no Exchange Note remains outstanding and (y) the first anniversary of the date hereof, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement (as defined in the November Securities Purchase Agreement) unless the Company shall have first complied with this Section 4.129. The Company acknowledges and agrees that the right set forth in this Section 4.12 9 is a right granted by the Company, separately, to each Purchaserthe Holder.
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser the Holder a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Holder is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser the Holder that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser the Holder within three (3) Trading Days after the Company’s delivery to such Purchaser the Holder of such Pre-Notice, and only upon a written request by such Purchaserthe Holder, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser the Holder an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser the Holder in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) percentage as set forth on the signature page of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion Holder attached hereto of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Available Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser the Holder must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaserthe Holder’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaserthe Holder’s Basic Available Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Holder elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser the Holder a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaserthe Holder’s receipt of such new Offer Notice.
(c) The Company shall have five ten (510) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser the Holder (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c9(c) above), then each Purchaser the Holder may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser the Holder elected to purchase pursuant to Section 4.12(b9(b) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers the Holder pursuant to this Section 4.12 9 prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser the Holder so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Holder in accordance with Section 4.12(a9(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser the Holder shall acquire from the Company, and the Company shall issue to such Purchaserthe Holder, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d9(d) above if such Purchaser the Holder has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser the Holder of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser the Holder of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser the Holder and its counsel.
(f) Any Offered Securities not acquired by a Purchaser the Holder or other Persons in accordance with this Section 4.12 9 may not be issued, sold or exchanged until they are again offered to such Purchaser the Holder under the procedures specified in this Agreement.
(g) The Company and each Purchaser the Holder agree that if any Purchaser the Holder elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include include, unless otherwise required or prohibited (as the case may be) by the rules or regulations of the Principal Market or the staff of the Principal Market, (x) any unreasonable representation, warranty, covenant, term or other provision, (y) any representation, warranty, covenant, term or other provision that is less favorable to the Holder than as set forth in the June Securities Purchase Agreement, mutatis mutandis or (z) any representation, warranty, covenant, term or other provision whereby such Purchaser the Holder shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 9 and unless otherwise agreed to by such Purchaserthe Holder, the Company shall either confirm in writing to such Purchaser the Holder that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser the Holder will not be in possession of any material, non-public information, by the fifth tenth (5th10th) Business Day following delivery of the Offer Notice. If by such fifth tenth (5th10th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaserthe Holder, such transaction shall be deemed to have been abandoned and such Purchaser the Holder shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser the Holder with another Offer Notice and such Purchaser the Holder will again have the right of participation set forth in this Section 4.129. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser the Holder in any sixty thirty (6030) day period, except as expressly contemplated by the last sentence of Section 4.12(b9(b).
(i) The restrictions contained in this Section 4.12 9 shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities (as defined in the June Notes).
Appears in 2 contracts
Samples: Amendment and Exchange Agreement, Amendment and Exchange Agreement (Helios & Matheson Analytics Inc.)
Participation Right. Until thirty (30) days after the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(m). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(m) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five three (53) Trading Days days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three one (31) Trading Days day after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(m) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number Offered Securities equal to the percentage of the Company’s outstanding equity ownership held by such Buyer, assuming conversion of all the outstanding Preferred Shares purchased hereunder by all Purchasers and the Company’s Series A Non-Voting Convertible Preferred Stock, on the date of delivery of the Pre-Notice (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth one (5th1) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth first (5th1st) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five seven (57) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person person or Persons persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto (except with respect to the termination of such Subsequent Placement, which shall be set forth in a written notice or e-mail to the Buyers and shall relieve such Buyers of any duty of confidentiality with respect to, or a duty not to trade on the basis of, any material, non-public information delivered by the Company, any of its Subsidiaries or agents with respect thereto).
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(m)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(m)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(m) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(m)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(m)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(m) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(m) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth seventh (5th7th) Business Day following delivery the end of the Offer NoticePeriod. If by such fifth seventh (5th7th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(m). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(m)(ii).
(iix) The restrictions contained in Company shall not circumvent the provisions of this Section 4.12 4(m) by providing terms or conditions to one Buyer that are not provided to all.
(x) Notwithstanding the foregoing, this Section 4(m) shall not apply in connection respect of the issuance of (A) shares of Common Stock or options to purchase Common Stock to directors, officers, consultants or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; provided further, that for any issuance of securities to consultants to qualify under this clause (A), they may only be issued as “restricted securities” (as defined in Rule 144) without any registration rights; (B) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (C) the Conversion Shares; and (D) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the Exempt Issuancebusiness of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities (each of the foregoing in clauses (A) through (D), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and options to purchase Common Stock may be issued to any employee, officer, consultant or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Broadfin Capital, LLC), Securities Purchase Agreement (Biodelivery Sciences International Inc)
Participation Right. Until thirty (30) days after From the date hereof through the one year anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the Securities Act), any Common Stock Equivalent, any debt (other pursuant to agreements involving credit extended by a bank or comparable financial institution), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.124.13. The Company acknowledges and agrees that the right set forth in this Section 4.12 4.13 is a right granted by the Company, separately, to each the Purchaser.
(a) At least five one (51) Trading Days Day prior to the execution and delivery of the documentation relating to any proposed or intended Subsequent PlacementPlacement (other than the Subsequent Placements described in Section 00 below), the Company shall deliver to each the Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information Placement and (zii) a statement informing such the Purchaser that it is entitled to receive an Offer a Subsequent Placement Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a the Purchaser within three one (31) Trading Days Day after the Company’s delivery to such the Purchaser of such Pre-Notice, and only upon a timely written request by such the Purchaser, the Company shall promptly, but no later than one (1) Trading Day eight hours after delivery of such request, deliver to such the Purchaser an irrevocable written notice (the “Offer Subsequent Placement Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered New Securities”) in a Subsequent Placement, which Offer Subsequent Placement Notice shall (Aw) identify and describe the Offered New Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered New Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the New Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such the Purchaser in accordance with the terms percentage of the Offer New Securities equal to the product of (A) 50% (or 25% solely if such Subsequent Placement is a Firm Commitment Offering (as defined below)) (as applicable) multiplied by (B) the quotient of (X) the Purchaser’s pro rata portion of thirty percent Subscription Amount divided by (30%Y) the aggregate purchase prices of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of Agreement and the aggregate number of Shares purchased hereunder by all other Purchasers under the other Subscription Agreements (the “Basic Purchaser’s Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such . The Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end within twelve hours after delivery of the fifth (5th) Business Day after such Purchaser’s receipt of the Offer Subsequent Placement Notice (the “Offer Period”), setting forth the portion amount of such the Purchaser’s Basic Amount that such the Purchaser elects to purchase and, if in such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase Subsequent Placement (in either case, the a “Notice of AcceptanceParticipation Notice”). If the Basic Amounts subscribed for by Purchaser fails to timely respond to a Pre-Notice or to timely deliver a Participation Notice, then the Purchaser shall have no right to participate in such Subsequent Placement and will be deemed to have waived all Purchasers are less than the total of all rights to participate in such Subsequent Placement.
(b) With respect to any Subsequent Placement that is an underwritten public offering or “registered direct” offering of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer PeriodCompany’s securities, the Company may shall comply with the terms of Section 4.13(a) with the following modifications: (i) the Company will not be required to deliver a Pre-Notice to each the Purchaser, (ii) the Company will deliver the Subsequent Placement Notice to the Purchaser a new Offer (without any request by Purchaser) within two hours following the final pricing of the New Securities with respect to such Subsequent Placement, (iii) the Subsequent Placement Notice and will not be required to include the Offer Period shall expire identity of the proposed purchasers of the New Securities, (iv) the Purchaser will only have the right to participate in such Subsequent Placement at the closing of such Subsequent Placement, (v) the Purchaser will be required to deliver its Participation Notice by 11:59 p.m. (New York time) on the fifth day the Purchaser receives such Subsequent Placement Notice if such Subsequent Placement Notice was received by the Purchaser at or prior to 6:00 p.m. on such date of receipt or by 8:30 a.m. on the Trading Day immediately following the date on which the Purchaser receives such Subsequent Placement Notice if such Subsequent Placement Notice was received by the Purchaser after 6:00 p.m. on such date of receipt (5thas applicable) Business Day after and (vi) if such Purchaser’s receipt of such new Offer NoticeSubsequent Placement is an underwritten offering, the Purchaser will acquire the New Securities from the underwriter(s) rather than from the Company.
(c) The Company shall have five three (53) Business Trading Days from the expiration delivery of the Offer Period above applicable Subsequent Placement Notice (Ai) to offer, issue, sell or exchange all or any part of such Offered New Securities as to which a Participation Notice of Acceptance has not been timely given by a the Purchaser (the “Refused Securities”) (or with respect to an underwritten offering, to offer, issue, sell or exchange all or any part of such New Securities to the underwriters of such offering) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Subsequent Placement Notice (if so described therein) (or in an underwritten offering to the underwriters thereof) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not materially more favorable to the acquiring Person or Persons or less favorable to the Company (or the underwriters, as applicable) than those set forth in the Offer Subsequent Placement Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC Commission on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c) above)applicable Subsequent Placement, then each the Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered New Securities specified in its Participation Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered New Securities that such the Purchaser elected to purchase pursuant to Section 4.12(b4.13(a) or Section 4.13(b) above (as applicable) multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered New Securities the Company actually proposes to issue, sell or exchange (including Offered New Securities to be issued or sold to Purchasers pursuant to this Section 4.12 4.13 and Section 4.13 of the other Subscription Agreements prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered New Securities. In the event that any the Purchaser so elects to reduce the number or amount of Offered New Securities specified in its Notice of AcceptanceParticipation Notice, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered New Securities unless and until such securities have again been offered to the Purchasers Purchaser in accordance with Section 4.12(a4.13(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such the Purchaser shall acquire from the Company, and the Company shall issue to such the Purchaser, the number or amount of Offered New Securities specified in its Participation Notice of Acceptance(except that in an underwritten offering, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in New Securities will be acquired from the Offerunderwriter thereof). The purchase by such the Purchaser of any Offered New Securities is subject in all cases to the preparation, execution and delivery by the Company and such the Purchaser of a separate purchase agreement relating to such Offered New Securities reasonably satisfactory in form and substance to such the Purchaser and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) . The Company and each the Purchaser agree that if any the Purchaser elects to participate in purchase any New Securities, none of the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such the Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, waiver or release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company. Notwithstanding the delivery of any Pre-Notice or Subsequent Placement Notice, (i) the Company shall have the right to terminate or delay the applicable Subsequent Placement as it may determine in its sole discretion and (ii) the final terms and conditions of each Subsequent Placement are subject to the approval of the Company in its sole discretion (and in any underwritten offering, by the underwriter as well) (it being expressly understood and agreed by the Company that nothing contained in this sentence shall modify, or otherwise relieve the Company from, any of the Company’s obligations (including, without limitation, compliance therewith) under this Section 4.13).
(hf) Any New Securities not acquired by the Purchaser or other Persons in accordance with this Section 4.13 may not be issued, sold or exchanged until they are again offered to the Purchaser under the procedures specified in this Agreement.
(g) The Purchaser acknowledges and agrees that, upon its receipt of a Subsequent Placement Notice, the Purchaser shall be deemed to be in receipt of material non-public information regarding the Company with respect to such Subsequent Placement and agrees to hold such information in confidence and not to disclose such information to any other Person and not to effect any transactions in the Common Stock (other than the purchase of the New Securities) during the period commencing at the time the Purchaser receives such Subsequent Placement Notice and ending at the time the Purchaser no longer is in possession of material, non-public information as set forth below in this Section 4.13(g). Notwithstanding anything to the contrary in this Section 4.12 4.13 and unless otherwise agreed to by such the Purchaser, the Company shall either confirm in writing to such the Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered New Securities, in either case, in such a manner such that such the Purchaser will not be in possession of any material, non-public information, by the fifth third (5th3rd) Business Trading Day following delivery of the Offer Subsequent Placement Notice. If by such fifth third (5th3rd) Business Trading Day, no public disclosure regarding a transaction with respect to the Offered New Securities has been made, and no notice regarding the abandonment of such transaction has been received by such the Purchaser, such transaction shall be deemed to have been abandoned and such the Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered New Securities, the Company shall provide such the Purchaser with another Offer Notice additional notices in accordance with, and such subject to, the terms of this Section 4.13 and the Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b)4.13.
(ih) The restrictions contained in this Section 4.12 4.13 shall not apply in connection with the any Exempt Issuance, issuance of shares of Common Stock in a Permitted ATM or the issuance of securities pursuant to the other Subscription Agreements. The Company shall not circumvent the provisions of this Section 4.13 of this Agreement or Section 4.13 of the other Subscription Agreements by providing terms or conditions to one Purchaser that are not provided to all Purchasers. “Firm Commitment Offering” means the issuance of shares of Common Stock pursuant to a bona fide firm commitment underwritten public offering with a nationally recognized underwriter that generates gross proceeds to the Company in excess of $12,000,000 (but expressly excluding “at-the-market offerings” (as defined in Rule 415(a)(4) under the Securities Act), “equity lines of credit” and “confidentially marketed public offerings”).
Appears in 2 contracts
Samples: Subscription Agreement, Subscription Agreement (ARCA Biopharma, Inc.)
Participation Right. Until thirty From the date hereof through the two (302) days after year anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “"Pre-Notice”"), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s 's delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “"Offer Notice”") of any proposed or intended issuance or sale or exchange (the “"Offer”") of the securities being offered (the “"Offered Securities”") in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s Buyer's pro rata portion of thirty percent (30%) 66% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such Purchaser’s Buyer's pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “"Basic Amount”"), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “"Undersubscription Amount”"), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such Purchaser’s Buyer's receipt of the Offer Notice (the “"Offer Period”"), setting forth the portion of such Purchaser’s Buyer's Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “"Notice of Acceptance”"). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “"Available Undersubscription Amount”"), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such Purchaser’s Buyer's receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “"Refused Securities”") pursuant to a definitive agreement(s) (the “"Subsequent Placement Agreement”"), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “"Subsequent Placement Documents”") shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Socket Mobile, Inc.), Securities Purchase Agreement (Socket Mobile, Inc.)
Participation Right. Until thirty (30) days At any time after the Closing DateDate and until any Notes are no longer outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(n). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(n) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered SecuritiesSecurities and the material terms thereof, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons or type of Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion (equal to such Buyer’s percentage beneficial ownership of thirty percent (30%the Company’s Common Stock) of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(n) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) (x) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) to publicly announce the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) if the termination of such Subsequent Placement Agreementhas been abandoned, which shall be filed with to notify the SEC on a Current Report on Form 6-K with such Buyer that the Subsequent Placement Agreement and any documents contemplated therein filed as exhibits theretohas been abandoned.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(n)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(n)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(n) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(n)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(n)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(n) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and the Buyer shall participate on the same terms as each other buyer in the Subsequent Placement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(n) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(n). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(n)(ii).
(iix) The restrictions contained in this Section 4.12 4(n) shall not apply in connection with (A) the Exempt Issuanceissuance of any Excluded Securities or (B) the issuance of any shares of Common Stock (excluding any warrants) in an “at the market” offering as defined by the Principal Market at a price per share of Common Stock no less than the Conversion Price (as defined in the Notes). The Company shall not circumvent the provisions of this Section 4(n) by providing terms or conditions to one Buyer that are not provided to all Buyers.
Appears in 2 contracts
Samples: Securities Purchase Agreement (PharmaCyte Biotech, Inc.), Securities Purchase Agreement (Femasys Inc)
Participation Right. Until thirty (30) days after the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each Purchaser.
(a) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three 1 (31) Trading Days Day after the Company’s 's delivery to such Purchaser of such Pre-Notice, and only upon a written request by such Purchaser, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser in accordance with the terms of the Offer such Purchaser’s 's pro rata portion of thirty percent (30%) % of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s 's receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s 's Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s 's receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report of Foreign Private Issuer on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “"Subsequent Placement Documents”") shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b).
(i) The restrictions contained in this Section 4.12 shall not apply in connection with the Exempt Issuance.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Luokung Technology Corp.), Securities Purchase Agreement (Luokung Technology Corp.)
Participation Right. Until thirty (30) days after From the date hereof through the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(l). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(l) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (Ai) if a statement that the proposed Offer Notice (as defined below) constitutes or contains Company desires to provide such Buyer with material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) or, if the proposed Offer Notice does not constitute or contain materialpermissible hereunder, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer in any material respect prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice in any material respect and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(l) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(l)(ii).
(iix) The restrictions contained in this Section 4.12 4(l) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (U-Vend, Inc.), Securities Purchase Agreement (U-Vend, Inc.)
Participation Right. Until thirty (30) days after At any time on or prior to the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent up to an aggregate of $25 million (30%in purchase price) of the Offered SecuritiesSecurities (collectively, in such offering and any prior offering pursuant to this Section 4(o)) prior to any issuance or sale to any other Persons, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number of the Preferred Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of either (A) any Excluded Securities or (B) a bona fide firm commitment underwritten public offering with gross proceeds of at least $15 million and a purchase price in excess of $10 per share (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events). The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Edoc Acquisition Corp.), Securities Purchase Agreement (Edoc Acquisition Corp.)
Participation Right. Until thirty From the date hereof through the one (301) days after year anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) all of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, waiver or release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Ecoblu Products, Inc.), Securities Purchase Agreement (Ecoblu Products, Inc.)
Participation Right. Until thirty (30) days after From the date hereof through the one year anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription AmountsAmounts (but in no event shall it be greater than such Buyer’s specified Undersubscription Amount), subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five ten (510) Business Days days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, waiver or release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice in accordance with, and subject to, the terms of this Section 4(o) and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all Buyers.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Atrinsic, Inc.), Securities Purchase Agreement (Atrinsic, Inc.)
Participation Right. Until thirty (30) days after From the date hereof through the second anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(q). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(q) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five one (51) Trading Days Day prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (Ai) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Buyer is willing to accept material non-public information or (Bii) if the proposed Offer Notice does not constitute or contain material, non-public information, (xA) a statement that the Company proposes or intends to effect a Subsequent Placement, (yB) a statement that the statement in clause (xA) above does not constitute material, non-public information and (zC) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(q) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number of Preferred Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of not later than 5:30 p.m. (New York City time) on the fifth (5th5th ) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts Amount subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th5th ) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice. If the Company does not receive a Notice of Acceptance from such Buyer in accordance with the terms herein, such Buyer shall be deemed to have notified the Company that it does not elect to participate in the Offer.
(ciii) The Company shall have five ten (510) Business Days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(q)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(q)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(q) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(q)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(q) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the CompanyCompany without the prior written consent of such Buyer.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(q) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth tenth (5th10th) Business Day following delivery of the Offer Notice. If by such fifth tenth (5th10th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered SecuritiesSecurities following an abandonment or a deemed abandonment of such transaction, the Company shall provide such Purchaser Buyer with another Offer Notice in accordance with, and subject to, the terms of this Section 4(q) and such Purchaser Buyer will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(q).
(iix) The restrictions contained in this Section 4.12 4(q) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(q) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (xG TECHNOLOGY, INC.), Securities Purchase Agreement (xG TECHNOLOGY, INC.)
Participation Right. Until thirty (30i) days after From the Closing Date, neither date hereof until the earlier of (i) the closing of the first public offering by the Company nor any for its own account of its Subsidiaries shallCommon Stock or Common Stock Equivalents (including a Qualified IPO) (a “Public Offering”) or (ii) December 15, directly or indirectly2022, effect subject to Section 4(g)(ix) below, upon any Subsequent Placement unless issuance by the Company of Common Stock or Common Stock Equivalents for cash consideration (including a Qualified IPO) (a “Subsequent Placement”), the Buyers shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth to participate in the Subsequent Financing on the same terms, conditions and price provided for in the Subsequent Financing as further described in this Section 4.12 is a right granted by the Company, separately, to each Purchaser4(g).
(aii) At least five three (53) Trading Business Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (yB) a statement that the statement in clause (xA) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three one (31) Trading Days Business Day after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one two (12) Trading Day Business Days after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A1) identify and describe the Offered Securities, (B2) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (3) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (C4) offer to issue and sell to or exchange with such Purchaser the Buyers in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) an aggregate amount of the Offered SecuritiesSecurities equal to the percentage obtained by dividing the total original principal amount of Notes sold by the total gross proceeds (before underwriting discounts, provided that commissions, fees and expenses) to the Company of the Public Offering (the “Total Participation Amount”). The number of Offered Securities which such Purchaser each Buyer shall have the right to subscribe for under this Section 4.12 4(g) shall be (xa) based on a percentage of the Total Participation Amount equal to such PurchaserBuyer’s pro rata portion of the aggregate number principal amount of Shares Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(biii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyers who has have subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth first (5th1st) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(civ) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) if the Company is then subject to the reporting requirements of section 13 or 15(d) of the Exchange Act, to publicly announce (x1) the execution of such Subsequent Placement Agreement, and (y2) either (Ia) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIb) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(dv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(g)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than on a pro rata basis based on the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b) above multiplied by a fraction, (A) the numerator of which shall be the revised number or amount of Offered Securities the Company actually proposes as compared to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original number or amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with this Section 4.12(a) above4(g).
(evi) Upon At the time of the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) . The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hvii) Notwithstanding anything to the contrary in this Section 4.12 4(g) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b).
(iviii) The restrictions contained Any Offered Securities not acquired by a Buyer or other Persons in accordance with this Section 4(g) may not be issued, sold or exchanged until they are again offered to such Buyer under the procedures specified in this Agreement.
(ix) Notwithstanding the foregoing, this Section 4.12 4(g) shall not apply in connection with the respect of any Exempt Issuance.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Perfect Moment Ltd.), Securities Purchase Agreement (Perfect Moment Ltd.)
Participation Right. Until thirty From the date hereof until the date that is the two (302) days after year anniversary of the Closing Initial Exercise Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the Securities Act)), any Convertible Securities, any debt, any preferred shares or any purchase rights (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.126. The Company acknowledges and agrees that the right set forth in this Section 4.12 6 is a right granted by the Company, separately, to each PurchaserHolder (including, each “beneficial holder” of warrants) as of the time of such Subsequent Placement (taken together with all Affiliates of such Holder (and/or “beneficial holder) of at least [ ] Warrants, provided such Holder has notified the Company of such minimum ownership, either directly or by virtue of filing a Schedule 13G at least three (3) days before such Subsequent Placement (each such Holder, a “Qualified Holder”).
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Qualified Holder a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Qualified Holder is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Qualified Holder that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Qualified Holder within three (3) Trading Days after the Company’s delivery to such Purchaser Qualified Holder of such Pre-Notice, and only upon a written request by such PurchaserQualified Holder, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Qualified Holder an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Qualified Holder in accordance with the terms of the Offer such PurchaserQualified Holder’s pro rata portion of thirty percent (30%) % of the Offered Securities, provided that the number of Offered Securities which such Purchaser Qualified Holder shall have the right to subscribe for under this Section 4.12 6 shall be (x) based on such PurchaserQualified Holder’s pro rata portion of the aggregate number of Warrants Shares purchased hereunder remaining exercisable by all Purchasers Qualified Holders (the “Basic Amount”), and (y) with respect to each Purchaser Qualified Holder that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Qualified Holders as such Purchaser Qualified Holder shall indicate it will purchase or acquire should the other Purchasers Qualified Holders subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Qualified Holder shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser Qualified Holder must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserQualified Holder’s Basic Amount that such Purchaser Qualified Holder elects to purchase and, if such Purchaser Qualified Holder shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Qualified Holder elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Qualified Holders are less than the total of all of the Basic Amounts, then each Purchaser Qualified Holder who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Qualified Holder who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Qualified Holder bears to the total Basic Amounts of all Purchasers Qualified Holders that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Qualified Holder a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Qualified Holder (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c6(c) above), then each Purchaser Qualified Holder may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Qualified Holder elected to purchase pursuant to Section 4.12(b6(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Qualified Holders pursuant to this Section 4.12 6 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Qualified Holder so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Qualified Holders in accordance with Section 4.12(a6(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Qualified Holder shall acquire from the Company, and the Company shall issue to such PurchaserQualified Holder, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d6(d) above if such Purchaser Qualified Holder has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Qualified Holder of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Qualified Holder of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Qualified Holder and its counsel.
(f) Any Offered Securities not acquired by a Purchaser Qualified Holder or other Persons in accordance with this Section 4.12 6 may not be issued, sold or exchanged until they are again offered to such Purchaser Qualified Holder under the procedures specified in this Agreement.
(g) The Company and each Purchaser Qualified Holder agree that if any Purchaser Qualified Holder elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Qualified Holder shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 6 and unless otherwise agreed to by such PurchaserQualified Holder, the Company shall either confirm in writing to such Purchaser Qualified Holder that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Qualified Holder will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserQualified Holder, such transaction shall be deemed to have been abandoned and such Purchaser Qualified Holder shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Qualified Holder with another Offer Notice and such Purchaser Qualified Holder will again have the right of participation set forth in this Section 4.126. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Qualified Holder in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b6(b).
(i) The restrictions contained in this Section 4.12 6 shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 6 by providing terms or conditions to one Qualified Holder that are not provided to all Qualified Holders.
Appears in 2 contracts
Samples: Warrant Agency Agreement (Mitesco, Inc.), Common Stock Purchase Warrant (Innovative Eyewear Inc)
Participation Right. Until thirty At any time on or prior to the ninetieth (3090th) days day after the each respective Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Buyer is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 25% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number of the Preferred Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount. “Trading Day” means a day on which the Principal Market is open for trading.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b).
(i) The restrictions contained in this Section 4.12 shall not apply in connection with the Exempt Issuance.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Biotricity Inc.), Securities Purchase Agreement (Biotricity Inc.)
Participation Right. Until thirty (30) days after the one year anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each Purchaser.
(a) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three one (31) Trading Days Day after the Company’s delivery to such Purchaser of such Pre-Notice, and only upon a written request by such Purchaser, the Company shall promptly, but no later than one three (13) Trading Day Days after such request, deliver to such Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) % of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth first (5th1st) Business Day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth first (5th1st) Business Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report of Foreign Private Issuer on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(f) Any So long as the period specified in the first sentence of this Section 4.12 has not yet elapsed, any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the an Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company (other than as required by law) or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b).
(i) The restrictions contained in this Section 4.12 shall not apply in connection with the an Exempt Issuance.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Blue Hat Interactive Entertainment Technology), Securities Purchase Agreement (Blue Hat Interactive Entertainment Technology)
Participation Right. Until thirty (30) days after At any time on or prior to the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(n). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(n) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 25% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(n) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(n)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(n)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(n) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(n)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(n)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(n) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, (y) shall include any representation, warranty or covenant more adverse to such Buyer than as set forth in the Transaction Documents and (z) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(n) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(n). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(n)(ii).
(iix) The restrictions contained in this Section 4.12 4(n) shall not apply in connection with (A) the Exempt Issuanceissuance of any Excluded Securities and (B) any shares of Common Stock or Options issued pursuant to a firm commitment bone fide underwritten public offering by the Company. The Company shall not circumvent the provisions of this Section 4(n) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Alpha Cognition Inc.), Securities Purchase Agreement (Alpha Cognition Inc.)
Participation Right. Until thirty (30) days after the Closing Dateeighteen month anniversary of the date hereof, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement (as defined below) unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five three (53) Trading Days (as defined in the Notes) prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 45% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice in the event that the Offer relates to an underwritten Subsequent Placement (as applicable, the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities (as defined below). The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
(x) For the purpose of this Section 4(o) the following definitions shall apply:
Appears in 2 contracts
Samples: Securities Purchase Agreement (Delcath Systems, Inc.), Securities Purchase Agreement (Delcath Systems, Inc.)
Participation Right. Until thirty From the date hereof until the date that is the twelve (3012) days after month anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect or enter into any agreement to effect any Subsequent Placement for cash consideration (a “Subsequent Financing”), unless the Company shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each Purchaser4(o).
(ai) At least five (5) Trading Days prior to any Between 4:00 p.m. and 7:00 p.m., New York time, on the Business Day immediately preceding the Business Day of a proposed or intended Subsequent PlacementFinancing (each, a “Subsequent Financing Date”), the Company shall deliver to each Purchaser the Buyer a written notice of its intention to effect a Subsequent Financing (each such noticeeach, a “Pre-Notice”) (the Company shall use best efforts to ensure that the Buyer has received and acknowledged receipt of the Pre-Notice within such time period), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent PlacementPlacement (without disclosing the specific terms or conditions of the proposed Subsequent Financing or the securities to be offered and sold therein, (y) a representation that such statement that the statement (described in clause (x) above above) does not constitute material, non-public information regarding the Company, its business or its securities and (z) a statement informing such Purchaser the Buyer that it is entitled to receive an Offer a Subsequent Financing Notice (as defined below) containing material, non-public information with respect to such Subsequent Placement upon its written request. Upon the timely written request of in accordance with this Section 4(o).
(ii) If the Buyer consents to receive material, non-public information with respect to such Subsequent Placement, the Buyer shall deliver a Purchaser within three (3) Trading Days after written request therefor to the Company’s delivery to such Purchaser of , not later than 9:00 p.m., New York time, on the Business Day on which the Buyer properly received such Pre-NoticeNotice from the Company, and upon such written request by the Buyer delivered to the Company prior to such time, and only upon a such written request by such Purchaserthe Buyer, the Company shall promptlypromptly thereafter, but no not later than one two (12) Trading Day hours after such requestwritten request by the Buyer was properly delivered to the Company, deliver to such Purchaser an irrevocable the Buyer a written notice of the proposed Subsequent Financing (the a “Offer Subsequent Financing Notice”), which shall (A) describe in reasonable detail the proposed terms and conditions of any such Subsequent Financing, including, without limitation, the proposed or intended issuance or sale or exchange (the “Offer”) terms of the securities being to be offered and sold in such Subsequent Financing (the “Offered Securities”) in a ), the total amount of proceeds intended to be raised and the Person or Persons through or with whom such Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered SecuritiesFinancing is proposed to be effected, (B) describe include, as an attachment thereto, a term sheet or similar document setting forth the price material terms and other conditions of such Subsequent Financing, including, without limitation, the material terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchangedSecurities, and (C) offer to issue and sell to or exchange with such Purchaser in accordance with the Buyer, upon the terms and subject to the conditions of the Offer such Purchaser’s pro rata portion of thirty percent (30%) of Subsequent Financing set forth in the Offered SecuritiesSubsequent Financing Notice, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion 50% of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription AmountParticipation Maximum”), which process shall ) at the same price per Offered Security to be repeated until paid by each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amountother Person participating in such Subsequent Financing.
(biii) To accept an OfferIn the event that the Buyer elects to participate in such Subsequent Financing for all or any part of the Participation Maximum, in whole or in part, such Purchaser the Buyer must deliver a written notice to the Company prior to the end later of (i) 11:00 a.m., New York time, on the fifth (5th) Business Day on which such proposed or intended Subsequent Financing shall occur and (ii) two (2) hours after such Purchaser’s receipt of the Offer time that the applicable Subsequent Financing Notice is received by the Buyer (the “Offer PeriodNotice Termination Time”), setting forth forth: (A) a statement that the portion Buyer elects to participate in such Subsequent Financing, (B) the amount of such Purchaser’s Basic Amount Offered Securities, which shall not exceed the Participation Maximum, that such Purchaser the Buyer elects to purchase andin such Subsequent Financing, if such Purchaser shall elect and (C) a representation that the Buyer has sufficient funds available to purchase all of its Basic Amount, such Offered Securities in such Subsequent Financing on the Undersubscription Amount, if any, that such Purchaser elects terms and subject to purchase the conditions set forth in the applicable Subsequent Financing Notice received by the Buyer (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Company does not receive a Notice of Acceptance from the Buyer prior to the applicable Notice Termination Time, the Buyer shall be entitled deemed to purchase, have elected not to participate in addition to the Basic Amounts subscribed for, Subsequent Financing on the Undersubscription Amount it has subscribed for; provided, however, if terms set forth in the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding applicable Subsequent Financing Notice received by the Company to the extent it deems reasonably necessary. Buyer.
(iv) Notwithstanding the foregoing, if the Company desires to change, modify or amend any of the terms or conditions of a Subsequent Financing, or the Offered Securities to be sold therein, set forth in a Subsequent Financing Notice delivered to the Buyer hereunder, the Company shall promptly, but not later than 10:00 p.m., New York time, on the Business Day immediately preceding the Business Day on which such Subsequent Financing is intended to occur, deliver to the Buyer a new written Subsequent Financing Notice describing in reasonable detail the terms and conditions of such Subsequent Financing and Offered Securities, as amended, and the Offer Buyer will again have the right to participate in such Subsequent Financing upon the terms and conditions, as amended, set forth in such new Subsequent Financing Notice, provided the Buyer delivers to the Company a Notice of Acceptance providing the information described in the penultimate sentence of Section 4(o)(iii) above, prior to the expiration Notice Termination Time with respect to such new Subsequent Financing Notice, which shall be the later of (I) 11:00 a.m., New York time, on the Offer PeriodBusiness Day on which such proposed Subsequent Financing providing for such amended terms and conditions as set forth in the new Subsequent Financing Notice delivered to the Buyer hereunder is intended to occur and (II) two (2) hours after the time that such new Subsequent Financing Notice was received by the Buyer. If by the Notice Termination Time, the Buyer has delivered to the Company a Notice of Acceptance in which it has elected to purchase in such Subsequent Financing an aggregate amount of Offered Securities that is greater than the Participation Maximum, the Buyer shall be deemed to have elected to participate for the applicable Participation Maximum in the Subsequent Financing on the terms set forth in the applicable Subsequent Financing Notice received by the Buyer.
(v) If by the Notice Termination Time, the Buyer has elected to purchase in such Subsequent Financing an aggregate amount of Offered Securities that is equal to or less than the Participation Maximum, as reflected in an Acceptance Notice delivered by the Buyer to the Company prior to the Termination Time, or the Buyer has not elected to participate in such Subsequent Financing, then the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, issue and sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Buyer, including any Offered Securities the Buyer did not elect to purchase pursuant to a Purchaser Notice of Acceptance as part of the Participation Maximum (all such Offered Securities that are not designated in a Notice of Acceptance as Offered Securities to be purchased by the Buyer in such Subsequent Financing, the “Refused Other Securities”) ), pursuant to a definitive agreement(s) (the “Subsequent Placement Financing Agreement”), but only to the offerees described in the Offer Subsequent Financing Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer most recent Subsequent Financing Notice received by the Buyer and (B) to publicly announce (x) the execution of such Subsequent Placement Financing Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Financing Agreement or (II) the termination of such Subsequent Placement Financing Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Financing Agreement and any documents contemplated therein filed as exhibits thereto. If a definitive agreement containing the terms and conditions of such Subsequent Financing as set forth in the Subsequent Financing Notice delivered to the Buyer is not entered into by the Company for any reason within five (5) Business Days after the date the initial Subsequent Financing Notice for such Subsequent Financing was first delivered to the Buyer hereunder, the Company shall promptly, but not later than 10:00 p.m., New York time, on the Business Day immediately preceding the Business Day on which such Subsequent Financing is intended to occur, deliver to the Buyer a new written Subsequent Financing Notice describing in reasonable detail the terms and conditions of such Subsequent Financing and Offered Securities, as amended, and the Buyer will again have the right to participate in such Subsequent Financing upon the terms and conditions, as amended, set forth in such new Subsequent Financing Notice, provided the Buyer delivers to the Company a Notice of Acceptance providing the information described in the penultimate sentence of Section 4(o)(iii) above, prior to the Notice Termination Time with respect to such new Subsequent Financing Notice, which shall be the time period described in Section 4(o)(iv) above.
(dvi) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(v) above), then each Purchaser the Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser the Buyer elected to purchase pursuant to Section 4.12(b4(o)(iii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser the Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyer in accordance with Section 4.12(a4(o)(i) and (ii) above.
(evii) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser the Buyer shall acquire from the Company, and the Company shall issue to such Purchaserthe Buyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(vi) above if such Purchaser the Buyer has so elected, upon the terms and conditions specified in the OfferSubsequent Financing Agreement. The purchase by such Purchaser the Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser the Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser the Buyer and its counsel.
(f) . Any Offered Securities not acquired by a Purchaser the Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser the Buyer under the procedures specified in this AgreementSection 4(o).
(gviii) The Company and each Purchaser the Buyer agree that if any Purchaser the Buyer elects to participate in the OfferSubsequent Financing, neither the Subsequent Placement Financing Agreement with respect to such Offer Subsequent Financing nor any other transaction documents related thereto (collectively, the “Subsequent Placement Financing Documents”) shall include any term or provision whereby such Purchaser the Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hix) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such Purchaserthe Buyer, the Company shall either confirm in writing to such Purchaser the Buyer that the transaction with respect to the Subsequent Placement Financing has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser the Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Subsequent Financing Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaserthe Buyer, such transaction shall be deemed to have been abandoned and such Purchaser the Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser the Buyer with another Offer Subsequent Financing Notice and such Purchaser the Buyer will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o).
(ix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuance.issuance of any Excluded Securities
Appears in 2 contracts
Samples: Securities Purchase Agreement (Trovagene, Inc.), Securities Purchase Agreement (Trovagene, Inc.)
Participation Right. Until thirty (30i) days after From the Closing Date, neither date hereof until the earlier of (i) the closing of the first public offering by the Company nor any for its own account of its Subsidiaries shallCommon Stock or Common Stock Equivalents (including a Qualified IPO) (a “Public Offering”) or (ii) twelve (12) months from the initial Closing, directly or indirectlysubject to Section 4(g)(ix) below, effect upon any Subsequent Placement unless issuance by the Company of Common Stock or Common Stock Equivalents for cash consideration (including a Qualified IPO) (a “Subsequent Placement”), the Buyers shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth to participate in the Subsequent Financing on the same terms, conditions and price provided for in the Subsequent Financing as further described in this Section 4.12 is a right granted by the Company, separately, to each Purchaser4(g).
(aii) At least five three (53) Trading Business Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (yB) a statement that the statement in clause (xA) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three one (31) Trading Days Business Day after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one two (12) Trading Day Business Days after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A1) identify and describe the Offered Securities, (B2) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (3) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (C4) offer to issue and sell to or exchange with such Purchaser the Buyers in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) an aggregate amount of the Offered SecuritiesSecurities equal to the percentage obtained by dividing the total original principal amount of Notes sold by the total gross proceeds (before underwriting discounts, provided that commissions, fees and expenses) to the Company of the Public Offering (the “Total Participation Amount”). The number of Offered Securities which such Purchaser each Buyer shall have the right to subscribe for under this Section 4.12 4(g) shall be (xa) based on a percentage of the Total Participation Amount equal to such PurchaserBuyer’s pro rata portion of the aggregate number principal amount of Shares Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(biii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyers who has have subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth first (5th1st) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(civ) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) if the Company is then subject to the reporting requirements of section 13 or 15(d) of the Exchange Act, to publicly announce (x1) the execution of such Subsequent Placement Agreement, and (y2) either (Ia) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIb) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(dv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(g)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than on a pro rata basis based on the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b) above multiplied by a fraction, (A) the numerator of which shall be the revised number or amount of Offered Securities the Company actually proposes as compared to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original number or amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with this Section 4.12(a) above4(g).
(evi) Upon At the time of the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) . The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hvii) Notwithstanding anything to the contrary in this Section 4.12 4(g) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b).
(iviii) The restrictions contained Any Offered Securities not acquired by a Buyer or other Persons in accordance with this Section 4(g) may not be issued, sold or exchanged until they are again offered to such Buyer under the procedures specified in this Agreement.
(ix) Notwithstanding the foregoing, this Section 4.12 4(g) shall not apply in connection with the respect of any Exempt Issuance.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Perfect Moment Ltd.), Securities Purchase Agreement (Perfect Moment Ltd.)
Participation Right. Until thirty (30) days after For as long as the Closing DateInvestor holds any Securities, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement involving a Variable Rate Transaction unless the Company shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each Purchaser4(l).
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent PlacementPlacement involving a Variable Rate Transaction, the Company shall deliver to each Purchaser the Investor a written notice of its proposal or intention to effect a Subsequent Placement involving a Variable Rate Transaction (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public informationinformation regarding the Company or any of its Subsidiaries) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent PlacementPlacement involving a Variable Rate Transaction, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser the Investor that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser the Investor within three (3) Trading Days after the Company’s delivery to such Purchaser the Investor of such Pre-Notice, and only upon a written request by such Purchaserthe Investor, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser the Investor an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent PlacementPlacement involving a Variable Rate Transaction, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser the Investor in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser the Investor must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaserthe Investor’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount the Offered Securities that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Investor elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser the Investor a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaserthe Investor’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser the Investor (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(l)(iii) above), then each Purchaser the Investor may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser the Investor elected to purchase pursuant to Section 4.12(b4(l)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers the Investor pursuant to this Section 4.12 4(l) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser the Investor so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Investor in accordance with Section 4.12(a4(l)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser the Investor shall acquire from the Company, and the Company shall issue to such Purchaserthe Investor, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser the Investor of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser the Investor of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser the Investor and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser the Investor or other Persons in accordance with this Section 4.12 4(l) may not be issued, sold or exchanged until they are again offered to such Purchaser the Investor under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser the Investor agree that if any Purchaser the Investor elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser the Investor shall be required to agree to any restrictions on trading as to any securities of the Company (other than restrictions required by applicable securities laws on the resale of the specific “restricted securities” (as that term is defined under Rule 144) being issued in the Subsequent Placement) or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(l) and unless otherwise agreed to by such Purchaserthe Investor, the Company shall either confirm in writing to such Purchaser the Investor that the transaction with respect to the Subsequent Placement involving a Variable Rate Transaction has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser the Investor will not be in possession of any material, non-public informationinformation regarding the Company or any of its Subsidiaries, by the fifth seventh (5th7th) Business Day following delivery of the Offer Notice. If by such fifth seventh (5th7th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaserthe Investor, such transaction shall be deemed to have been abandoned and such Purchaser the Investor shall not be in possession of any material, non-public information with respect to regarding the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser the Investor with another Offer Notice in accordance with, and such Purchaser subject to, the terms of this Section 4(l) and the Investor will again have the right of participation set forth in this Section 4.124(l). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser the Investor in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(l)(ii).
(iix) The restrictions contained in this Section 4.12 4(l) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. “Excluded Securities” shall mean (A) shares of Common Stock or standard options to purchase Common Stock to directors, officers, employees or consultants of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below) (it being expressly understood and agreed for all purposes of this Agreement that lawyers, law firms, accountants and accounting firms do not constitute consultants), provided that the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Investor; (B) shares of Common Stock issued upon the conversion, exercise or exchange of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof, provided that the conversion, exercise or exchange (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or exchange (as the case may be) provisions of such Convertible Security that were in effect (and expressly set forth in such Convertible Security) on the date immediately prior to the date of this Agreement, the conversion, exercise or exchange price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects the Investor; (C) the Notes and the December 2016 Convertible Note; (D) the Conversion Shares and the shares of Common Stock issuable upon conversion, redemption or amortization of the December 2016 Convertible Note; and (E) shares issued pursuant to that At Market Issuance Sales Agreement dated as of March 8, 2016 by and among the Company, FBR Capital Markets & Co. and MLV & Co. LLC, as amended from time to time. “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Subsequent Placement” means a transaction in which the Company or any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the Securities Act)), any Convertible Securities, any debt, any preferred stock or any purchase rights. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, including, without limitation, pursuant to any “weighted average” or “full-ratchet” anti-dilution provision, or (ii) enters into or offers or sells any securities pursuant to any agreement (including, without limitation, an agreement providing for an “equity line of credit” or an “at-the-market” offering) whereby the Company or any Subsidiary may sell securities at a future determined price.
Appears in 1 contract
Participation Right. Until thirty (30) days after the Closing DateAt any time any Note remains outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days (as defined in the Notes) prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 35% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the (a) fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice in the event that the Offer relates to an underwritten Subsequent Placement, or (b) third (3rd) Business Day after such Buyer’s receipt of the Offer Notice in the event that the Offer relates to a Subsequent Placement that is not underwritten (as applicable, the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Delcath Systems, Inc.)
Participation Right. Until thirty (30) days after At any time on or prior to the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.124(h). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(h) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Business Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Business Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Business Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer no less than such PurchaserBuyer’s pro rata portion allocation of thirty percent (30%) $3,750,000 in aggregate purchase price of the Offered SecuritiesSecurities (less the aggregate purchase price of any securities of the Company purchased by such Buyer pursuant to this Section 4(h)), provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(h) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which which, if after the Public Company Date, shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(h)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(h)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(h) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(h)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(h)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(h) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(h) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(h). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(h)(ii).
(iix) The restrictions contained in this Section 4.12 4(h) shall not apply in connection with the Exempt Issuanceissuance of (i) shares of Common Stock or standard options to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such pursuant to any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such (each, an “Approved Stock Plan”), provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 5% of the Common Stock issued and outstanding immediately prior to the date hereof and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; or (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers. The Company shall not circumvent the provisions of this Section 4(h) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (SPK Acquisition Corp.)
Participation Right. Until thirty (30) days after At any time on or prior to the second anniversary of the First Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Gaucho Group Holdings, Inc.)
Participation Right. Until thirty At any time on or prior to the later of (30A) days after the third anniversary of the Closing Dateand (B) the date no Notes remain outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer, and such Bxxxx agrees that such right is not transferrable to any third party transferee of any Securities, other than a transferee that agrees in writing to be bound by the terms and conditions of this Agreement.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Buyer is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five seven (57) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) if a Subsequent Placement Agreement is executed during such seven (7) Business Day period, to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth twelfth (5th12th) Business Day following delivery of the Offer Notice. If by such fifth twelfth (5th12th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer (or offer or consummate any other Subsequent Placement) in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all or include terms or conditions primarily designed to adversely affect one or more Buyers to the extent such Buyer(s) exercises its rights pursuant to this Section 4(o) hereunder.
Appears in 1 contract
Samples: Securities Purchase Agreement (Lucid Diagnostics Inc.)
Participation Right. Until thirty (30) days after the Closing DateFor so long as this Warrant is outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities (as defined below), any debt, any preferred shares or any purchase rights (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.125. The Company acknowledges and agrees that the right set forth in this Section 4.12 5 is a right granted by the CompanyCompany to the Holder; provided that the Holder beneficially owns at least 142,857 Warrants as of the time the Company engaged in a Subsequent Placement (each such Holder, separately, to each Purchasera “Qualified Holder”).
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Qualified Holder a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Qualified Holder that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Qualified Holder within three (3) Trading Days after the Company’s delivery to such Purchaser Qualified Holder of such Pre-Notice, and only upon a written request by such PurchaserQualified Holder, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Qualified Holder an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Qualified Holder in accordance with the terms of the Offer such PurchaserQualified Holder’s pro rata portion of thirty percent (30%) of the Offered Securities, provided that the number of Offered Securities which such Purchaser Qualified Holder shall have the right to subscribe for under this Section 4.12 5 shall be (x) based on such PurchaserQualified Holder’s pro rata portion of the aggregate number of Purchased Shares purchased hereunder by all Purchasers Qualified Holders (the “Basic Amount”), and (y) with respect to each Purchaser Qualified Holder that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Qualified Holders as such Purchaser Qualified Holder shall indicate it will purchase or acquire should the other Purchasers Qualified Holders subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Qualified Holder shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser Qualified Holder must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserQualified Holder’s Basic Amount that such Purchaser Qualified Holder elects to purchase and, if such Purchaser Qualified Holder shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Qualified Holder elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Qualified Holders are less than the total of all of the Basic Amounts, then each Purchaser Qualified Holder who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Qualified Holder who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Qualified Holder bears to the total Basic Amounts of all Purchasers Qualified Holders that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Qualified Holder a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Qualified Holder (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c5(c) above), then each Purchaser Qualified Holder may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Qualified Holder elected to purchase pursuant to Section 4.12(b5(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Qualified Holders pursuant to this Section 4.12 5 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Qualified Holder so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Qualified Holders in accordance with Section 4.12(a5(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Qualified Holder shall acquire from the Company, and the Company shall issue to such PurchaserQualified Holder, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d5(d) above if such Purchaser Qualified Holder has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Qualified Holder of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Qualified Holder of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Qualified Holder and its counsel.
(f) Any Offered Securities not acquired by a Purchaser Qualified Holder or other Persons in accordance with this Section 4.12 5 may not be issued, sold or exchanged until they are again offered to such Purchaser Qualified Holder under the procedures specified in this Agreement.
(g) The Company and each Purchaser Qualified Holder agree that if any Purchaser Qualified Holder elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Qualified Holder shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 5 and unless otherwise agreed to by such PurchaserQualified Holder, the Company shall either confirm in writing to such Purchaser Qualified Holder that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Qualified Holder will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserQualified Holder, such transaction shall be deemed to have been abandoned and such Purchaser Qualified Holder shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Qualified Holder with another Offer Notice and such Purchaser Qualified Holder will again have the right of participation set forth in this Section 4.125. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Qualified Holder in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b5(b).
(i) The restrictions contained in this Section 4.12 5 shall not apply in connection with the issuance of any Exempt Issuance. The Company shall not circumvent the provisions of this Section 5 by providing terms or conditions to one Qualified Holder that are not provided to all.
Appears in 1 contract
Participation Right. Until thirty (30) days after At any time on or prior to the first anniversary of the Initial Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(q). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(q) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 25% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(q) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(q)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(q)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(q) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(q)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(q)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(q) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(q) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(q). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(q)(ii).
(iix) The restrictions contained in this Section 4.12 4(q) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities or the Permitted ATM. The Company shall not circumvent the provisions of this Section 4(q) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Participation Right. Until thirty (30) days At any time after the Closing DateDate and until the earlier of (i) the second anniversary of the Closing Date and (ii) the date in which Preferred Shares are no longer outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(p). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(p) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five two (52) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Buyer is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 33 1/3% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(p) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number stated value of the Preferred Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such PurchaserBxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(p)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(p)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(p) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(p)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(p)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(p) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(p) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(p). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(p)(ii).
(i) . The restrictions contained in this Section 4.12 4(p) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (MyMD Pharmaceuticals, Inc.)
Participation Right. Until thirty (30) days after At any time on or prior to the Closing Datetwelve month anniversary of the date no Notes remain outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(p). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(p) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days (as defined in the Warrants) prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept expressly consent to the acceptance of material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%Y) 50% of the Offered SecuritiesSecurities for any Subsequent Placement occurring on or prior to the date upon which the Notes are no longer outstanding, or (Z) 30% of the Offered Securities for any Subsequent Placement occurring during the twelve month period immediately following the date upon which the Notes are no longer outstanding, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(p) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(p)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(p)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(p) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(p)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(p)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(p) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(p) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(p). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(p)(ii).
(iix) The restrictions contained in this Section 4.12 4(p) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(p) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Evofem Biosciences, Inc.)
Participation Right. Until thirty At any time on or prior to the eighteenth (3018) days after month anniversary of the Closing Datedate hereof, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any issuance of debt, equity or Common Stock Equivalents for cash consideration, indebtedness or a combination thereof (a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.124.18. The Company acknowledges and agrees that the right set forth in this Section 4.12 4.18 is a right granted by the Company, separately, to each Purchaser.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-non- public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three (3) Trading Days after the Company’s delivery to such Purchaser of such Pre-Notice, and only upon a written request by such Purchaser, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) 35% of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 4.18 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares the Units purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4.19(iii) above), then each Purchaser may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b4.19(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 4.18 prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a4.19(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4.19(iv) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 4.18 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4.18 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.124.18. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4.19(ii).
(iix) The restrictions contained in this Section 4.12 4.18 shall not apply in connection with the issuance of any Exempt Issuance. The Company shall not circumvent the provisions of this Section 4.18 by providing terms or conditions to one Purchaser that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Grom Social Enterprises, Inc.)
Participation Right. Until thirty (30) days after the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124.13. The Company acknowledges and agrees that the right set forth in this Section 4.12 4.13 is a right granted by the Company, separately, to each Purchaser.
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three (3) Trading Days after the Company’s delivery to such Purchaser of such Pre-Notice, and only upon a written request by such Purchaser, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) % of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 4.13 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Common Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, including without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(cSection 4.13(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b4.13(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 4.13 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a4.13(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4.13(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 4.13 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 4.13 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.124.13. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4.13(b).
(i) The restrictions contained in this Section 4.12 4.13 shall not apply in connection with the Exempt Issuance.
Appears in 1 contract
Samples: Securities Purchase Agreement (WiMi Hologram Cloud Inc.)
Participation Right. Until thirty (30) days At any time after the Closing DateDate and until the earlier of (i) the second anniversary of the Closing Date and (ii) the date in which Preferred Shares are no longer outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(p). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(p) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five two (52) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Buyer is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 33 1/3% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(p) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number stated value of the Preferred Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(p)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(p)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(p) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(p)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(p)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(p) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(p) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(p). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(p)(ii).
(i) . The restrictions contained in this Section 4.12 4(p) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (PharmaCyte Biotech, Inc.)
Participation Right. Until thirty (30) days after From the date hereof through the six month anniversary of the Initial Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.12Section. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice as to whether such Buyer wants to receive material, non-public information about the Company (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer to receive such material, non-public information within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyers in accordance with the terms of the Offer such Purchaser’s pro rata portion up to an aggregate of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which each such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number of Shares Common Stock purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription AmountsAmounts (but in no event shall it be greater than such Buyer’s specified Undersubscription Amount), subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five ten (510) Business Days days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(l)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(n)(iii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(n)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, waiver or release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its SubsidiariesSubsidiaries and any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and such Buyer or any of its affiliates, on the other hand, shall terminate. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice in accordance with, and subject to, the terms of this Section and such Purchaser Buyer will again have the right of participation set forth in this Section 4.12Section. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(n)(ii).
(iix) The restrictions contained in this Section 4.12 shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section by providing terms or conditions to one Buyer that are not provided to all Buyers.
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Participation Right. Until thirty From the date hereof through the twelve (3012) days after month anniversary of the Closing Applicable Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre"PRE-Notice”NOTICE"), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s 's delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”"OFFER NOTICE") of any proposed or intended issuance or sale or exchange (the “Offer”"OFFER") of the securities being offered (the “Offered Securities”"OFFERED SECURITIES") in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such Purchaser’s Buyer's pro rata portion of the aggregate number of Common Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”"BASIC AMOUNT"), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”"UNDERSUBSCRIPTION AMOUNT"), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s Buyer's receipt of the Offer Notice (the “Offer Period”"OFFER PERIOD"), setting forth the portion of such Purchaser’s Buyer's Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”"NOTICE OF ACCEPTANCE"). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”"AVAILABLE UNDERSUBSCRIPTION AMOUNT"), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s Buyer's receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”"REFUSED SECURITIES") pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”"SUBSEQUENT PLACEMENT AGREEMENT"), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”"SUBSEQUENT PLACEMENT DOCUMENTS") shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice in accordance with, and subject to, the terms of this Section 4(o) and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuance.issuance of any (x) Excluded Securities or (y)
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Participation Right. Until thirty (30) days after all of the Closing DateNotes have been converted, redeemed or otherwise satisfied in accordance with their terms, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser each Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) all of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, waiver or release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Magnum dOr Resources Inc)
Participation Right. Until thirty From the date hereof through the eighteen (3018) days after month anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserSignificant Buyer.
(ai) At least five three (53) Trading Business Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Significant Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Significant Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Significant Buyer within three two (32) Trading Business Days after the Company’s delivery to such Purchaser Significant Buyer of such Pre-Notice, and only upon a written request by such PurchaserSignificant Buyer, the Company shall promptly, but no later than one (1) Trading Business Day after such request, deliver to such Purchaser Significant Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Significant Buyer in accordance with the terms of the Offer (I) such PurchaserSignificant Buyer’s pro rata portion of thirty percent Basic Amount (30%as defined below) of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (yII) with respect to each Purchaser that if such Significant Buyer elects to purchase its Basic Amount, any additional portion of the applicable Offered Securities attributable to the Basic Amounts of other Purchasers Significant Buyers as such Purchaser Significant Buyer shall indicate it will purchase or acquire should the other Purchasers Significant Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”). “Basic Amount” means, which process shall be repeated until each Purchaser shall have an opportunity with respect to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offera Significant Buyer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice equal to the product of Acceptance to an amount that shall be not less than (1) 50% of the applicable Offered Securities multiplied by (2) the quotient of (X) the number or amount of the Offered Securities that Common Shares purchased hereunder by such Purchaser elected to purchase pursuant to Section 4.12(b) above multiplied Significant Buyer divided by a fraction, (AY) the numerator aggregate number of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a) aboveCommon Shares purchased hereunder by all Significant Buyers.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b).
(i) The restrictions contained in this Section 4.12 shall not apply in connection with the Exempt Issuance.
Appears in 1 contract
Samples: Securities Purchase Agreement (Lightpath Technologies Inc)
Participation Right. Until thirty (30) days after From the Closing Datedate hereof until the second anniversary of the date hereof, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 35% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to materially modify or materially amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not materially more favorable to the acquiring Person or Persons or materially less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement, but the Company will not be obligated to enter into a purchase agreement with the Buyers that is materially different that the purchase agreement that the Company enters into with other investors in the Subsequent Placement (unless such purchase agreement violates the terms and conditions of this Section 4(o)).
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company owned by Buyer prior to such Subsequent Placement, or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Rock Creek Pharmaceuticals, Inc.)
Participation Right. Until thirty (30) days after At any time on or prior to the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(n). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(n) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 2% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(n) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report of Foreign Issuer on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(n)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(n)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(n) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(n)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(n)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(n) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(n) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(n). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(n)(ii).
(iix) The restrictions contained in this Section 4.12 4(n) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(n) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Visionary Education Technology Holdings Group Inc.)
Participation Right. Until thirty (30) days after At any time during the Closing Dateperiod commencing on the date hereof through the date no Notes remain outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserQualified Holder (as defined below).
(ai) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer who holds, together with its affiliates and/or related funds, at least $1,000,000 of Notes (each such Buyer, a “Qualified Holder”) a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Qualified Holder is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Qualified Holder that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request; provided, that in the event such Subsequent Placement is a registered direct offering, the Company shall be required to deliver a Pre-Notice to each Qualified Holder at least six (6) hours prior to such Subsequent Placement. Upon the written request of a Purchaser Qualified Holder within three two (32) Trading Days after the Company’s delivery to such Purchaser Qualified Holder of such Pre-Notice, or within four (4) hours after the Company’s delivery to such Qualified Holder of such Pre-Notice in the event such Subsequent Placement is a registered direct offering, and only upon a written request by such PurchaserQualified Holder, the Company shall promptly, but no later than one (1) Trading Day Day, or one (1) hour in the event such Subsequent Placement is a registered direct offering, after such request, deliver to such Purchaser Qualified Holder an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Qualified Holder in accordance with the terms of the Offer such PurchaserQualified Holder’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Qualified Holder shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserQualified Holder’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Qualified Holder that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Qualified Holders as such Purchaser Qualified Holder shall indicate it will purchase or acquire should the other Purchasers Qualified Holders subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Qualified Holder shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Qualified Holder must deliver a written notice to the Company prior to the end of the fifth second (5th2nd) Business Day Day, or two (2) hours in the event such Subsequent Placement is a registered direct offering, after such PurchaserQualified Holder’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserQualified Holder’s Basic Amount that such Purchaser Qualified Holder elects to purchase and, if such Purchaser Qualified Holder shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Qualified Holder elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Qualified Holders are less than the total of all of the Basic Amounts, then each Purchaser Qualified Holder who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Qualified Holder who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Qualified Holder bears to the total Basic Amounts of all Purchasers Qualified Holders that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Qualified Holder a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of such new Offer Notice.
(ciii) The Company shall have five ten (510) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Qualified Holder (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Qualified Holder may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Qualified Holder elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Qualified Holders pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Qualified Holder so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Qualified Holders in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Qualified Holder shall acquire from the Company, and the Company shall issue to such PurchaserQualified Holder, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Qualified Holder has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Qualified Holder of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Qualified Holder of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Qualified Holder and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Qualified Holder or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Qualified Holder under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Qualified Holder agree that if any Purchaser Qualified Holder elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Qualified Holder shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserQualified Holder, the Company shall either confirm in writing to such Purchaser Qualified Holder that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Qualified Holder will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserQualified Holder, such transaction shall be deemed to have been abandoned and such Purchaser Qualified Holder shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Qualified Holder with another Offer Notice and such Purchaser Qualified Holder will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Qualified Holder in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities or securities issued in connection with a public offering by the Company. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Qualified Holder that are not provided to all.
Appears in 1 contract
Samples: Purchase Agreement (Greenwave Technology Solutions, Inc.)
Participation Right. Until thirty (30) days after the [●] anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each Purchaser.
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three (3) Trading Days after the Company’s 's delivery to such Purchaser of such Pre-Notice, and only upon a written request by such Purchaser, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities Securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser in accordance with the terms of the Offer such Purchaser’s 's pro rata portion of thirty percent (30%) [●]% of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s 's receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s 's Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s 's receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC Commission on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(f) Any So long as the period specified in the first sentence of this Section 4.12 has not yet elapsed, any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b).
(i) The restrictions contained in this Section 4.12 shall not apply in connection with the Exempt Issuance.
Appears in 1 contract
Samples: Securities Purchase Agreement (EZGO Technologies Ltd.)
Participation Right. Until thirty the earlier of (30x) days the 90th calendar day after the Closing DateDate and (y) such time that the Company shall have consummated an additional offering of Notes, Commitment Shares and Warrants with a gross purchase price of at least $2.75 million with the Buyers, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(z). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(z) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(z) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(z)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Bxxxx elected to purchase pursuant to Section 4.12(b4(z)(ii) above multiplied by a fraction, ,
(Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(z) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(z)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(z)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(z) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(z) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(z). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(z)(ii).
(iix) The restrictions contained in this Section 4.12 4(z) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(z) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Splash Beverage Group, Inc.)
Participation Right. Until thirty (30) days after At any time on or prior to the eighteen month anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(p). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(p) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 40% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(p) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(p)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(p)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(p) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(p)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(p)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(p) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(p) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(p). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(p)(ii).
(iix) The restrictions contained in this Section 4.12 4(p) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(p) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Cosmos Holdings Inc.)
Participation Right. Until thirty (30) days after the second anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(q). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(q) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one two (12) Trading Day Days after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 40% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(q) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number of New Ordinary Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(q)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(q)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(q) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(q)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(q)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(q) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(q) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(q). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(q)(ii).
(iix) The restrictions contained in this Section 4.12 4(q) shall not apply in connection with (A) the Exempt Issuanceissuance of any Excluded Securities or (B) a firm commitment public offering of the Company with a nationally recognized underwriter resulting in gross proceeds to the Company of at least $15 million. The Company shall not circumvent the provisions of this Section 4(q) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (China Information Technology, Inc.)
Participation Right. Until thirty (30) days after At any time on or prior to the Closing Datetwelve month anniversary of the date no Notes or January Notes remain outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(p). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(p) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days (as defined in the Warrants) prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept expressly consent to the acceptance of material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer (I) such PurchaserBuyer’s pro rata portion of thirty percent (30%Y) 50% of the Offered SecuritiesSecurities for any Subsequent Placement occurring on or prior to the date upon which the Notes are no longer outstanding, or (Z) 30% of the Offered Securities for any Subsequent Placement occurring during the twelve month period immediately following the date upon which the Notes are no longer outstanding, and, (II) with respect to any Buyer that holds January Notes and elects to require a Subsequent Transaction Optional Redemption (as defined in the January Notes) and/or any Buyer that holds Notes that elects to require a Subsequent Transaction Optional Redemption (as defined in the Notes), as applicable, with respect to a Subsequent Placement contemplated by such applicable Offer Notice, up to such additional amount equal to the sum of (A) any Subsequent Transaction Optional Redemption Price (as defined in the January Notes) with respect thereto, if any, and (B) any Subsequent Transaction Optional Redemption Price (as defined in the Notes) with respect thereto, if any, provided that that, solely with respect to clause (I) above (collectively, the “Reinvestment Amount”), the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(p) shall be (x) based on such PurchaserBuyer’s pro rata portion of the sum of (1) the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers and (2) the aggregate original principal amount of January Notes purchased by all of the January Buyers pursuant to the January Securities Purchase Agreement (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount. For the avoidance of doubt, any such Reinvestment Amount may be net funded by the applicable Buyer in connection with the consummation of the applicable Subsequent Transaction Optional Redemption and/or Subsequent Transaction Optional Redemption simultaneously with the time of the consummation of such applicable Subsequent Placement.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(p)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(p)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(p) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(p)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(p)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(p) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(p) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(p). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(p)(ii).
(iix) The restrictions contained in this Section 4.12 4(p) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(p) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Evofem Biosciences, Inc.)
Participation Right. Until thirty the second (302nd) days after anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement Placement, unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other thanthan either: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public informationpossible, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request or (B) otherwise, that the Company proposes or intends to give material non-public information to the Buyer upon such Buyer’s written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser the Buyers in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (no less than 30%) % of the Offered Securities, ; provided that the number of Offered Securities which such Purchaser a Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), ) and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Digital Domain Media Group, Inc.)
Participation Right. Until thirty From and after the date of this Agreement until the first (301st) days after anniversary of the Closing Date, neither and except underwritten public offerings as set forth in clause (x) of this Section 5(m), the Company nor shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries shallof Common Stock or Common Stock Equivalents (or a combination of units thereof) for cash consideration (a “Subsequent Financing”), directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each Purchaser5(m).
(ai) At least five Between 4:00 p.m. and 7:00 p.m., New York time, on the second (52nd) Trading Days prior to any Business Day immediately preceding the Business Day of a proposed or intended Subsequent PlacementFinancing (each, a “Subsequent Financing Date”), the Company shall deliver to each Purchaser the Lead Investor a written notice of its intention to effect a Subsequent Financing (each such noticeeach, a “Pre-Notice”) (the Company shall use best efforts to ensure that the Lead Investor has received and acknowledged receipt of the Pre-Notice within such time period), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent PlacementFinancing (without disclosing the specific terms or conditions of the proposed Subsequent Financing or the securities to be offered and sold therein, (y) a representation that such statement that the statement (described in clause (x) above above) does not constitute material, non-public information regarding the Company, its business or its securities and (z) a statement informing such Purchaser the Lead Investor that it is entitled to receive an Offer a Subsequent Financing Notice (as defined below) containing material, non-public information with respect to such Subsequent Placement Financing upon its written request. Upon the timely written request of in accordance with this Section 5(m).
(ii) If the Lead Investor consents to receive material, non-public information with respect to such Subsequent Financing, the Lead Investor shall deliver a Purchaser within three (3) Trading Days after written request therefor to the Company’s delivery , not later than 9:00 a.m., New York time, on the Business Day immediately preceding the Business Day of the proposed or intended Subsequent Financing, and upon such written request by the Lead Investor delivered to the Company prior to such Purchaser of such Pre-Noticetime, and only upon a such written request by such Purchaserthe Lead Investor, the Company shall promptlypromptly thereafter, but no not later than one two (12) Trading Day hours after such requestwritten request by the Lead Investor was properly delivered to the Company, deliver to such Purchaser an irrevocable the Lead Investor a written notice of the proposed Subsequent Financing (the a “Offer Subsequent Financing Notice”), which shall (A) describe in reasonable detail the proposed terms and conditions of any such Subsequent Financing, including, without limitation, the proposed or intended issuance or sale or exchange (the “Offer”) terms of the securities being to be offered and sold in such Subsequent Financing (the “Offered Securities”) in a ), the total amount of proceeds intended to be raised and the Person or Persons through or with whom such Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered SecuritiesFinancing is proposed to be effected, (B) describe include, as an attachment thereto, a term sheet or similar document setting forth the price material terms and other conditions of such Subsequent Financing, including, without limitation, the material terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchangedSecurities, and (C) offer to issue and sell to or exchange with such Purchaser in accordance with the Lead Investor, upon the terms and subject to the conditions of the Offer such Purchaser’s pro rata portion of thirty percent (30%) of Subsequent Financing set forth in the Offered SecuritiesSubsequent Financing Notice, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion 50% of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription AmountParticipation Maximum”), which process shall ) at the same price per Offered Security to be repeated until paid by each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amountother Person participating in such Subsequent Financing.
(biii) To accept an OfferIn the event that the Lead Investor elects to participate in such Subsequent Financing for all or any part of the Participation Maximum, in whole or in part, such Purchaser the Lead Investor must deliver a written notice to the Company prior to the end later of (i) 11:00 a.m., New York time, on the fifth (5th) Business Day on which such proposed or intended Subsequent Financing shall occur as set forth in the Subsequent Financing Notice and (ii) two (2) hours after such Purchaser’s receipt of the Offer time that the applicable Subsequent Financing Notice is received by the Lead Investor (the “Offer PeriodNotice Termination Time”), setting forth forth: (A) a statement that the portion Lead Investor elects to participate in such Subsequent Financing, (B) the amount of such Purchaser’s Basic Amount Offered Securities, which shall not exceed the Participation Maximum, that such Purchaser the Lead Investor elects to purchase andin such Subsequent Financing, if such Purchaser shall elect and (C) a representation that the Lead Investor has sufficient funds available to purchase all of its Basic Amount, such Offered Securities in such Subsequent Financing on the Undersubscription Amount, if any, that such Purchaser elects terms and subject to purchase the conditions set forth in the applicable Subsequent Financing Notice received by the Lead Investor (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Company does not receive a Notice of Acceptance from the Lead Investor prior to the applicable Notice Termination Time, the Lead Investor shall be entitled deemed to purchase, have elected not to participate in addition to the Basic Amounts subscribed for, Subsequent Financing on the Undersubscription Amount it has subscribed for; provided, however, if terms set forth in the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding applicable Subsequent Financing Notice received by the Company to the extent it deems reasonably necessary. Lead Investor.
(iv) Notwithstanding the foregoing, if the Company desires to change, modify or amend any of the terms or conditions of a Subsequent Financing, or the Offered Securities to be sold therein, set forth in a Subsequent Financing Notice delivered to the Lead Investor hereunder, the Company shall promptly, but not later than 10:00 p.m., New York time, on the Business Day immediately preceding the Business Day on which such Subsequent Financing is intended to occur, deliver to the Lead Investor a new written Subsequent Financing Notice describing in reasonable detail the terms and conditions of such Subsequent Financing and Offered Securities, as amended, and the Offer Lead Investor will again have the right to participate in such Subsequent Financing upon the terms and conditions, as amended, set forth in such new Subsequent Financing Notice, provided the Lead Investor delivers to the Company a Notice of Acceptance providing the information described in the penultimate sentence of Section 5(m)(iii) above, prior to the expiration Notice Termination Time with respect to such new Subsequent Financing Notice, which shall be the later of (I) 11:00 a.m., New York time, on the Offer PeriodBusiness Day on which such proposed Subsequent Financing providing for such amended terms and conditions as set forth in the new Subsequent Financing Notice delivered to the Lead Investor hereunder is intended to occur and (II) two (2) hours after the time that such new Subsequent Financing Notice was received by the Lead Investor. If by the Notice Termination Time, the Lead Investor has delivered to the Company a Notice of Acceptance in which it has elected to purchase in such Subsequent Financing an aggregate amount of Offered Securities that is greater than the Participation Maximum, the Lead Investor shall be deemed to have elected to participate for the applicable Participation Maximum in the Subsequent Financing on the terms set forth in the applicable Subsequent Financing Notice received by the Lead Investor.
(v) If by the Notice Termination Time, the Lead Investor has elected to purchase in such Subsequent Financing an aggregate amount of Offered Securities that is equal to or less than the Participation Maximum, as reflected in an Acceptance Notice delivered by the Lead Investor to the Company prior to the Termination Time, or the Lead Investor has not elected to participate in such Subsequent Financing, then the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, issue and sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Lead Investor, including any Offered Securities the Lead Investor did not elect to purchase pursuant to a Purchaser Notice of Acceptance as part of the Participation Maximum (all such Offered Securities that are not designated in a Notice of Acceptance as Offered Securities to be purchased by the Lead Investor in such Subsequent Financing, the “Refused Other Securities”) ), pursuant to a definitive agreement(s) (the “Subsequent Placement Financing Agreement”), but only to the offerees described in the Offer Subsequent Financing Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer most recent Subsequent Financing Notice received by the Lead Investor and (B) to publicly announce (x) the execution of such Subsequent Placement Financing Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Financing Agreement or (II) the termination of such Subsequent Placement Financing Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Financing Agreement and any documents contemplated therein filed as exhibits thereto. If a definitive agreement containing the terms and conditions of such Subsequent Financing as set forth in the Subsequent Financing Notice delivered to the Lead Investor is not entered into by the Company for any reason within five (5) Business Days after the date the initial Subsequent Financing Notice for such Subsequent Financing was first delivered to the Lead Investor hereunder, and to the extent that the Company determines to proceed with such Subsequent Financing, the Company shall promptly, but not later than 10:00 p.m., New York time, on the Business Day immediately preceding the Business Day on which such Subsequent Financing is intended to occur, deliver to the Lead Investor a new written Subsequent Financing Notice describing in reasonable detail the terms and conditions of such Subsequent Financing and Offered Securities, as amended, and the Lead Investor will again have the right to participate in such Subsequent Financing upon the terms and conditions, as amended, set forth in such new Subsequent Financing Notice, provided the Lead Investor delivers to the Company a Notice of Acceptance providing the information described in the penultimate sentence of Section 5(m)(iii) above, prior to the Notice Termination Time with respect to such new Subsequent Financing Notice, which shall be the time period described in Section 5(m)(iv) above.
(dvi) In the event the Company shall propose to sell less than all the Refused Other Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c5(m)(v) above), then each Purchaser the Lead Investor may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser the Lead Investor elected to purchase pursuant to Section 4.12(b5(m)(iii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers the Lead Investor pursuant to this Section 4.12 5(m) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser the Lead Investor so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Lead Investor in accordance with Section 4.12(a5(m)(i) and (ii) above.
(evii) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Other Securities, such Purchaser the Lead Investor shall acquire from the Company, and the Company shall issue to such Purchaserthe Lead Investor, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d5(m)(vi) above if such Purchaser the Lead Investor has so elected, upon the terms and conditions specified in the OfferSubsequent Financing Agreement. The purchase by such Purchaser the Lead Investor of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser the Lead Investor of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser the Lead Investor and its counsel.
(f) . Any Offered Securities not acquired by a Purchaser the Lead Investor or other Persons in accordance with this Section 4.12 5(m) may not be issued, sold or exchanged until they are again offered to such Purchaser the Lead Investor under the procedures specified in this AgreementSection 5(m).
(gviii) The Company and each Purchaser the Lead Investor agree that if any Purchaser the Lead Investor elects to participate in the OfferSubsequent Financing, without the prior written consent of the Lead Investor (which may be granted or withheld in its sole discretion), neither the Subsequent Placement Financing Agreement with respect to such Offer Subsequent Financing nor any other transaction documents related thereto (collectively, the “Subsequent Placement Financing Documents”) shall include any term or provision whereby such Purchaser the Lead Investor shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hix) Notwithstanding anything to the contrary in this Section 4.12 5(m) and unless otherwise agreed to by such Purchaserthe Lead Investor, the Company shall either confirm in writing to such Purchaser the Lead Investor that the transaction with respect to the Subsequent Placement Financing has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser the Lead Investor will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Subsequent Financing Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaserthe Lead Investor, such transaction shall be deemed to have been abandoned and such Purchaser the Lead Investor shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser the Lead Investor with another Offer Subsequent Financing Notice and such Purchaser the Lead Investor will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b5(m).
(ix) The restrictions contained in this Section 4.12 5(m) shall not apply in connection with the Exempt Issuanceissuance of any Common Stock or Common Stock Equivalents (or a combination of units thereof) in a firm commitment underwritten public offering of Common Stock or Common Stock Equivalents (or a combination of units thereof).
Appears in 1 contract
Participation Right. Until thirty (30) days after At any time on or prior to the second anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three two (32) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number of the Preferred Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Participation Right. Until thirty From the date hereof until the later of (30i) days twelve (12) months after the Closing DateEffective Date of the initial Registration Statement required to be filed by the Company pursuant to Section 2(a) of the Registration Rights Agreement which covers all of the securities required to be covered thereunder and (2) the date on which all of the Notes have been converted, redeemed or otherwise satisfied in accordance with their terms, neither the Company nor any of its the Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended the closing of the Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) ask such Buyer if it wants to review the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether details of such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written requestfinancing. Upon the written request of a Purchaser within three (3) Trading Days after the Company’s delivery to such Purchaser of such Pre-NoticeBuyer, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) all of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5i) twenty (20) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) ten (10) Business Days from the expiration of the Offer Period to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required owned by such Buyer prior to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Companysuch Subsequent Placement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth tenth (5th10th) Business Day day following delivery of the Offer Notice. If by such fifth tenth (5th10th) Business Dayday, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its the Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Generex Biotechnology Corp)
Participation Right. Until thirty (30) days after From the date hereof through the second anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(q). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(q) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five one (51) Trading Days Day prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (Ai) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Buyer is willing to accept material non-public information or (Bii) if the proposed Offer Notice does not constitute or contain material, non-public information, (xA) a statement that the Company proposes or intends to effect a Subsequent Placement, (yB) a statement that the statement in clause (xA) above does not constitute material, non-public information and (zC) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(q) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number of Preferred Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of not later than 5:30 p.m. (New York City time) on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts Amount subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice. If the Company does not receive a Notice of Acceptance from such Buyer in accordance with the terms herein, such Buyer shall be deemed to have notified the Company that it does not elect to participate in the Offer.
(ciii) The Company shall have five ten (510) Business Days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(q)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(q)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(q) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(q)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(q) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the CompanyCompany without the prior written consent of such Buyer.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(q) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth tenth (5th10th) Business Day following delivery of the Offer Notice. If by such fifth tenth (5th10th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered SecuritiesSecurities following an abandonment or a deemed abandonment of such transaction, the Company shall provide such Purchaser Buyer with another Offer Notice in accordance with, and subject to, the terms of this Section 4(q) and such Purchaser Buyer will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(q).
(iix) The restrictions contained in this Section 4.12 4(q) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(q) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (xG TECHNOLOGY, INC.)
Participation Right. Until thirty (30) days At any time after the Closing Datedate hereof through, and including, (x) with respect to the Buyer’s right to purchase Additional Offering Securities further to an Additional Offering (as each term is defined below) the earlier to occur of (I) the first anniversary of the date hereof and (II) the date of the consummation of one or more Subsequent Placements with the Buyers on terms identical to the Transaction Documents in all material respects with an aggregate purchase price of at least $10 million (the “Additional Offering”, and the securities thereof, the “Additional Offering Securities”) and (y) with respect to Buyer’s right to particpate in a Subsequent Placement other than an Additional Offering the earlier to occur of (I) the Maturity Date of the Notes, (II) the date all principal and interest due and owing under the Notes is either converted into Common Stock and/or repaid in full and (III) the date of the consummation of a Subsequent Placement by the Company with gross proceeds, paid in cash, of at least $5,000,000, in either case, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%x) 100% of the Offered SecuritiesSecurities with respect to an Additional Offering and (y) 25% of the Offered Securities with respect to any other Subsequent Placement, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount. Notwithstanding the foregoing, at any time prior to the first anniversary of the date hereof, if the Company shall not have consummated an Additional Offering on or prior to such date of determination and the Company delivers an Offer Notice to any Buyer, each Buyer may, in lieu of subscribing for the Offered Securities, acquire Additional Offering Securities in one or more Additional Offerings until such time as the Company shall have received at least $10 million in aggregate proceeds with respect thereto.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Digital Health Acquisition Corp.)
Participation Right. Until thirty At any time on or prior to the first anniversary of the Maturity Date (30as defined in the Initial Notes) days after (or, if one or more Additional Closings have occurred hereunder, the Closing DateMaturity Date (as defined in the last Additional Note issued hereunder)), neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30I) with respect to any offerings of indebtedness, 100%) or (II) with respect to any other offering, 35% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ocean Biomedical, Inc.)
Participation Right. Until thirty From the date hereof through the one (301) days after year anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public informationinformation regarding the Company or any of its Subsidiaries) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public informationinformation regarding the Company or any of its Subsidiaries, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to regarding the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice in accordance with, and subject to, the terms of this Section 4(o) and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with (i) the Exempt Issuanceissuance of any Excluded Securities and (ii) sales of shares of Common Stock by the Company pursuant to, and in accordance with, the terms of the Xxxxxx ATM Agreement that are in effect on the date of this Agreement. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all Buyers.
Appears in 1 contract
Participation Right. Until thirty (30) days after At any time on or prior to the second anniversary of the Closing DateDate (or, if earlier, the nine (9) month anniversary of the date no Preferred Shares or Preferred Warrants remain outstanding), neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number of the Preferred Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report of Foreign Issuer on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Lytus Technologies Holdings PTV. Ltd.)
Participation Right. Until thirty (30) days after At any time on or prior to the first anniversary of the Initial Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five one (51) Trading Days Day prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three one (31) Trading Days Day after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 15% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth first (5th1st) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth first (5th1st) Business Day after such PurchaserBxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five ten (510) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report of Foreign Issuer on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, (y) representation and warranties of an Investor in the Subsequent Placement Documents shall not be more restrictive than those of the Buyers in this Agreement (other than such changes as necessary to comply with applicable law, rules and regulations, the manner of sale of such security in such Subsequent Placement and/or the type of such security to be sold in such Subsequent Placement) and (z) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth tenth (5th10th) Business Day following delivery of the Offer Notice. If by such fifth tenth (5th10th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty thirty (6030) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Participation Right. Until thirty (30) days after the Closing Datefirst anniversary of the date no Preferred Shares remain outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement involving a Variable Rate Transaction unless the Company shall have first complied with this Section 4.124(q). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(q) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “"Pre-Notice”"), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s 's delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “"Offer Notice”") of any proposed or intended issuance or sale or exchange (the “"Offer”") of the securities being offered (the “"Offered Securities”") in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s Buyer's pro rata portion of thirty percent (30I) with respect to any Subsequent Placement that is a Variable Rate Transaction, 100% or (II) with respect to any Subsequent Placement that is not a Variable Rate Transaction, 50%) , in each case, of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(q) shall be (x) based on such Purchaser’s Buyer's pro rata portion of the aggregate number of Preferred Shares purchased hereunder by all Purchasers Buyers (the “"Basic Amount”"), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “"Undersubscription Amount”"), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s Buyer's receipt of the Offer Notice (the “"Offer Period”"), setting forth the portion of such Purchaser’s Buyer's Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “"Notice of Acceptance”"). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “"Available Undersubscription Amount”"), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s Buyer's receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “"Refused Securities”") pursuant to a definitive agreement(s) (the “"Subsequent Placement Agreement”"), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report of Foreign Issuer on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(q)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(q)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(q) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(q)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(q)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(q) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “"Subsequent Placement Documents”") shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(q) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(q). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(q)(ii).
(i) The restrictions contained in this Section 4.12 4(q) shall not apply in connection with the Exempt Issuanceissuance of any (a) Excluded Securities, (b) shares of Common Stock or Convertible Securities issued pursuant to strategic mergers or acquisitions of other assets or businesses, or strategic licensing or development transactions; provided that (x) the primary purpose of such issuance is not to raise capital as determined in good faith by the Buyers, (y) the purchaser or acquirer of such shares of Common Stock in such issuance solely consists of either (1) the actual participants in such strategic licensing or development transactions, (2) the actual owners of such assets or securities acquired in such merger or acquisition or (3) the shareholders, partners or members of the foregoing Persons, and (z) the number or amount (as the case may be) of such shares of Common Stock issued to such Person by the Company shall not be disproportionate to such Person's actual participation in such strategic licensing or development transactions or ownership of such assets or securities to be acquired by the Company (as applicable) or (c) shares of Common Stock or Convertible Securities issued pursuant to lenders or other institutional investors in any arm's length transaction providing non-convertible debt financing to the Company or its Subsidiary. The Company shall not circumvent the provisions of this Section 4(q) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Participation Right. Until thirty From the date hereof through the twelve (3012) days after month anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124.16. The Company acknowledges and agrees that the right set forth in this Section 4.12 4.16 is a right granted by the Company, separately, to each Purchaser.
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information Placement and (zii) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three (3) Trading Days after the Company’s delivery to such Purchaser of such Pre-Notice, and only upon a written request by such Purchaser, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 4.16 shall be (xa) based on such Purchaser’s pro rata portion of the aggregate number of Common Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (yb) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each such Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each such Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC Commission on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4.16(c) above), then each such Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b4.16(b) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 4.16 prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a4.16(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 4.16 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 4.16 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth tenth (5th10th) Business Day following delivery of the Offer Notice. If by such fifth tenth (5th10th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice in accordance with, and subject to, the terms of this Section 4.16 and such Purchaser will again have the right of participation set forth in this Section 4.124.16. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4.16(b).
(i) The restrictions contained in this Section 4.12 4.16 shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4.16 by providing terms or conditions to one Purchaser that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (ImmunoCellular Therapeutics, Ltd.)
Participation Right. Until thirty (30) days At any time after the date hereof until the eighteen month anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(q). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(q) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days (or one (1) Trading Day with respect to any SEC registered offering of securities of the Company) prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 35% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(q) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number of Common Shares purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day (or one (1) Business Day with respect to any SEC registered offering of securities of the Company) after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day (or the first (1st) Business Day with respect to any SEC registered offering of securities of the Company) after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days (or one (1) Business Day with respect to any SEC registered offering of securities of the Company) from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(q)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(q)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(q) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(q) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(q)(iii) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(q) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(q) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day (or the first (1st) Business Day with respect to any SEC registered offering of securities of the Company) following delivery of the Offer Notice. If by such fifth (5th) Business DayDay (or the first (1st) Business Day with respect to any SEC registered offering of securities of the Company), no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(q). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(q)(ii).
(iix) The restrictions contained in this Section 4.12 4(q) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(q) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (American Virtual Cloud Technologies, Inc.)
Participation Right. Until thirty (30) days after At any time on or prior to the third anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer, and such Buyer agrees that such right is not transferrable to any third party transferee of any Securities, other than a transferee that agrees in writing to be bound by the terms and conditions of this Agreement.
(ai) At least five (5) Trading Days (as defined in the Notes) prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five seven (57) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) if a Subsequent Placement Agreement is executed during such seven (7) Business Day period, to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth twelfth (5th12th) Business Day following delivery of the Offer Notice. If by such fifth twelfth (5th12th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer (or offer or consummate any other Subsequent Placement) in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all. Nothing in this this Section 4(o) shall amend, modify or replace any other term or condition by and between the Company and any Buyer in any agreement (including, without limitation, the 2018 Agreement) in effect immediately prior to the date hereof.
Appears in 1 contract
Participation Right. Until thirty (30) days after From the date hereof through the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (Ai) if a statement that the proposed Offer Notice (as defined below) constitutes or contains Company desires to provide such Buyer with material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) or, if the proposed Offer Notice does not constitute or contain materialpermissable hereunder, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 50% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer in any material respect prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth third (5th3rd) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice in any material respect and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities or the Permitted Purchase Money Warrants. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Participation Right. Until thirty (30) days after the Closing DateFor so long as this Warrant is outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities (as defined below), any debt, any preferred shares or any purchase rights (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.125. The Company acknowledges and agrees that the right set forth in this Section 4.12 5 is a right granted by the Company, separately, to each PurchaserHolder (including, each “beneficial holder” of warrants) as of the time of such Subsequent Placement (taken together with all Affiliates of such Holder (and/or “beneficial holder) of at least [_____] Warrants, provided such Holder has notified the Company of such minimum ownership, either directly or by virtue of filing a Schedule 13G at least three (3) days before such Subsequent Placement (each such Holder, a “Qualified Holder”).
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Qualified Holder a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Qualified Holder that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Qualified Holder within three (3) Trading Days after the Company’s delivery to such Purchaser Qualified Holder of such Pre-Notice, and only upon a written request by such PurchaserQualified Holder, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Qualified Holder an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Qualified Holder in accordance with the terms of the Offer such PurchaserQualified Holder’s pro rata portion of thirty percent (30%) % of the Offered Securities, provided that the number of Offered Securities which such Purchaser Qualified Holder shall have the right to subscribe for under this Section 4.12 5 shall be (x) based on such PurchaserQualified Holder’s pro rata portion of the aggregate number of Purchased Shares purchased hereunder by all Purchasers Qualified Holders (the “Basic Amount”), and (y) with respect to each Purchaser Qualified Holder that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Qualified Holders as such Purchaser Qualified Holder shall indicate it will purchase or acquire should the other Purchasers Qualified Holders subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Qualified Holder shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser Qualified Holder must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserQualified Holder’s Basic Amount that such Purchaser Qualified Holder elects to purchase and, if such Purchaser Qualified Holder shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Qualified Holder elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Qualified Holders are less than the total of all of the Basic Amounts, then each Purchaser Qualified Holder who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Qualified Holder who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Qualified Holder bears to the total Basic Amounts of all Purchasers Qualified Holders that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Qualified Holder a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Qualified Holder (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c5(c) above), then each Purchaser Qualified Holder may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Qualified Holder elected to purchase pursuant to Section 4.12(b5(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Qualified Holders pursuant to this Section 4.12 5 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Qualified Holder so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Qualified Holders in accordance with Section 4.12(a5(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Qualified Holder shall acquire from the Company, and the Company shall issue to such PurchaserQualified Holder, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d5(d) above if such Purchaser Qualified Holder has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Qualified Holder of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Qualified Holder of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Qualified Holder and its counsel.
(f) Any Offered Securities not acquired by a Purchaser Qualified Holder or other Persons in accordance with this Section 4.12 5 may not be issued, sold or exchanged until they are again offered to such Purchaser Qualified Holder under the procedures specified in this Agreement.
(g) The Company and each Purchaser Qualified Holder agree that if any Purchaser Qualified Holder elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Qualified Holder shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 5 and unless otherwise agreed to by such PurchaserQualified Holder, the Company shall either confirm in writing to such Purchaser Qualified Holder that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Qualified Holder will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserQualified Holder, such transaction shall be deemed to have been abandoned and such Purchaser Qualified Holder shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Qualified Holder with another Offer Notice and such Purchaser Qualified Holder will again have the right of participation set forth in this Section 4.125. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Qualified Holder in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b5(b).
(i) The restrictions contained in this Section 4.12 5 shall not apply in connection with the issuance of any Exempt Issuance. The Company shall not circumvent the provisions of this Section 5 by providing terms or conditions to one Qualified Holder that are not provided to all Qualified Holders.
Appears in 1 contract
Samples: Ordinary Shares Purchase Warrant (Jeffs' Brands LTD)
Participation Right. Until thirty (30) days after the Closing DateApril 15, neither 2023, the Company nor any of its Subsidiaries shall, directly or indirectly, shall not effect any issuances of Common Stock or Common Stock Equivalents for cash proceeds (a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.124.17. The Company acknowledges and agrees that the right set forth in this Section 4.12 4.17 is a right granted by the Company, separately, to each Purchaser.
(a) At least five seven (57) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, and (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three five (35) Trading Days Day after the Company’s delivery to such Purchaser of such Pre-Notice, and only upon a written request by such Purchaser, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, and (C) offer to issue and sell to or exchange with such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 4.17 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth second (5th2nd) Business Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five twenty (520) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits theretoNotice.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b).
(ie) The restrictions contained in this Section 4.12 4.17 shall not apply in connection with the an Exempt Issuance, other issuance pursuant to subsection (d) of such definition.
Appears in 1 contract
Participation Right. Until thirty At any time on or prior to the second (302nd) days after anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shallshall not, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Buyer is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three one (31) Trading Days Day after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty twenty-five percent (3025%) of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will shall purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth first (5th1st) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth first (5th1st) Business Day after such PurchaserBxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c) above4(o)(iii)), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a) above4(o)(i).
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its SubsidiariesCompany. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser will Buyer shall again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to each of the Buyers.
Appears in 1 contract
Participation Right. Until thirty (30) days From the date hereof until the date that is 18 months after the Closing Date, neither the Company nor any of its Subsidiaries subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.12. The Company acknowledges and agrees that the right set forth in this Section 4.12 is a right granted by the Company, separately, to each Purchaser4.13.
(a) At least five (5) Trading Days days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the Company believes that the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such the Purchaser is willing to accept material non-public information or (B) if the Company believes that the proposed Offer Notice does not constitute or contain material, non-public information, (xy) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information Placement and (z) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three one (31) Trading Days day after the Company’s delivery to such Purchaser of such Pre-Notice, and only upon a written request by such Purchaser, the Company shall promptly, but no later than one (1) Trading Day after such request, promptly deliver to such Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, and (C) offer to issue and sell to or exchange with such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty thirty-five percent (3035%) in total of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 4.13 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares shares of Common Stock (including any Pre-Funded Warrants) purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process . The Company shall not be repeated until each permitted to deliver more than one such Offer Notice to a Purchaser in any sixty (60) day period nor shall have the Company be permitted to effect a Subsequent Placement within 18 months of the Closing Date without providing such Purchaser with an opportunity to subscribe for any remaining Undersubscription AmountOffer Notice.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth first (5th1st) Business Day day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Purchaser’s receipt of such new Offer Noticeappropriate.
(c) The Company shall have five ten (510) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 6-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4.13(c) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b4.13(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 4.13 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4.13(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Company and such Purchaser and its counseltheir respective counsels.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 4.13 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth tenth (5th10th) Business Day business day following delivery of the Offer Notice. If by such fifth tenth (5th10th) Business Daybusiness day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b)subsidiaries.
(ig) The Company and each Purchaser agree that if any Purchaser elects to participate in the Subsequent Placement, the transaction documents related to the Subsequent Placement shall not include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any of the Securities purchased hereunder or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written consent of such Purchaser.
(h) The restrictions contained in this Section 4.12 4.13 shall not apply in connection with the any Exempt Issuance. Furthermore, notwithstanding any provision in this Section 4.13, the Company shall not be obligated to take any action that would violate applicable securities laws.
Appears in 1 contract
Samples: Securities Purchase Agreement (Bakkt Holdings, Inc.)
Participation Right. Until thirty From the date hereof through the one (301) days after year anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer. The Company, each Buyer and ICOP agree that from and after the Closing Date Section 4(o) of the Prior Purchase Agreement will no longer be in effect and this Section 4(o) supersedes Section 4(o) of the Prior Purchase Agreement.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (xi) a statement that the Company proposes or intends to effect a Subsequent Placement, (yii) a statement that the statement in clause (xi) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) all of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (xa) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (yb) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser such Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser such Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company (other than restrictions required by applicable securities laws on the resale of the specific “restricted securities” (as that term is defined under Rule 144) being issued in the Subsequent Placement) or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to again pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice in accordance with, and subject to, the terms of this Section 4(o) and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty forty-five (6045) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Converted Organics Inc.)
Participation Right. Until thirty (30) days after At any time on or prior to the one year anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Common Stock Equivalents, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether pursuant to a public or private offering) is referred to as a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.124.15. The Company shall provide notice to each Purchaser at least (i) 5 hours in advance of an intra-day Subsequent Placement pursuant to a registration statement, (ii) 12 hours in advance of an overnight Subsequent Placement pursuant to a registration statement, and (ii) 3 Business Days in advance of any other Subsequent Placement (the notice period referred to in (i), (ii) and (iii) is referred to as the “Applicable Placement Notice Time”). The Company acknowledges and agrees that the right set forth in this Section 4.12 4.15 is a right granted by the Company, separately, to each Purchaser.
(a) At least five (5) Trading Days No later than the Applicable Placement Notice Time prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three (3) Trading Days after the Company’s delivery to such Purchaser of such Pre-Notice, and only upon a written request by such Purchaser, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Ai) identify and describe the Offered Securities, (Bii) describe the price and other material terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (iii) include proposed drafts of the Subsequent Placement Documents (as defined below) and specify the proposed time at which the Company intends to execute the Subsequent Placement Documents, and (Civ) offer to issue and sell to or exchange with such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty one hundred percent (30100%) of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 4.15 shall be (x) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by Subscription Amount for all Purchasers pursuant to this Agreement (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior following receipt of an Offer Notice at least, as applicable, (i) 1 hour in advance of an intra-day Subsequent Placement pursuant to the end a registration statement, (ii) 3 hours in advance of the fifth an overnight Subsequent Placement pursuant to a registration statement, and (5thii) 1 Business Day after such Purchaser’s receipt in advance of the Offer Notice any other Subsequent Placement (as applicable, the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth one (5th1) Business Trading Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five forty-eight (548) Business Days hours from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4.15(iii) above), then each Purchaser may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b4.15(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 4.15 prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a4.15(i) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4.15(iv) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 4.15 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 4.15 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth forty-eighth (5th48th) Business Day hour following delivery of the Offer Notice. If by such fifth forty-eight (5th48th) Business Dayhour, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b)4.15.
(i) The restrictions contained in this Section 4.12 4.15 shall not apply in connection with any Exempt Issuance (as defined in this Agreement). The Company shall not circumvent the Exempt Issuanceprovisions of this Section 4.15 by providing terms or conditions to one or more Purchasers that are not provided to all Purchasers.
Appears in 1 contract
Samples: Securities Purchase Agreement (Odyssey Marine Exploration Inc)
Participation Right. Until thirty At any time after the Closing Date until eighteen (3018) days months after the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 100% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserXxxxx’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all Buyers.
Appears in 1 contract
Participation Right. Until thirty From the date hereof until the first (301st) days after anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security, any Common Stock Equivalents, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”), unless the Company shall have first complied with this Section 4.124.7. The Company acknowledges and agrees that the right set forth in this Section 4.12 4.7 is a right granted by the Company, separately, to each Purchaser.
(a) At least five two (52) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (yB) a statement that the statement in clause (xA) above does not constitute material, non-public information and (zC) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three (3) the same Trading Days after Day of the Company’s delivery to such Purchaser of such Pre-Notice, and only upon a written request by such Purchaser, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A1) identify and describe the Offered Securities, (B2) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (3) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (C4) offer to issue and sell to or exchange with such Purchaser all Purchasers, in accordance with the terms of the Offer such Purchaser’s pro rata portion Offer, an aggregate of thirty forty percent (3040%) of the Offered Securities, provided that the number of Offered Securities which such each Purchaser shall have the right to subscribe for under this Section 4.12 4.7 shall be (xa) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers Purchaser (the “Basic Amount”), and (yb) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts Amount of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth first (5th1st) Business Trading Day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that its pro rata portion of the Available Undersubscription Amount as based on the Basic Amount of such Purchaser bears relative to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth second (5th2nd) Business Trading Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Trading Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x1) the execution of such Subsequent Placement Agreement, and (y2) either (Ia) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIb) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all of the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4.7(c) above), then each such Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than on a pro rata basis based on the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b) above multiplied by a fraction, (A) the numerator of which shall be the revised number or amount of Offered Securities the Company actually proposes as compared to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original number or amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a4.7(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such each Purchaser shall acquire from the Company, and the Company shall issue to such each Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hf) Notwithstanding anything to the contrary in this Section 4.12 4.7 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth (5th) Business Trading Day following delivery of the Offer Notice. If by such fifth (5th) Business Trading Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. .
(g) The Company shall not be permitted to deliver more than one such Offer Notice to such any Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4.7(b). Notwithstanding anything to the contrary herein, the Company shall not be required to permit the Purchasers from purchasing any Offered Securities pursuant to this Section 4.7 to the extent that doing so would require the Company to obtain shareholder approval of such purchases.
(ih) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.7 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement. The restrictions contained in this Section 4.12 4.7 shall not apply in connection with the issuance of any Exempt IssuanceIssuances.
Appears in 1 contract
Samples: Securities Purchase Agreement (Sino-Global Shipping America, Ltd.)
Participation Right. Until thirty From the date hereof until one (301) days year after the Closing Datedate the Warrants are initially exercisable, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security, any Common Stock Equivalents, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”), unless the Company shall have first complied with this Section 4.124.11. The Company acknowledges and agrees that the right set forth in this Section 4.12 4.11 is a right granted by the Company, separately, to each Purchaser.
(a) At least five three (53) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (yB) a statement that the statement in clause (xA) above does not constitute material, non-public information and (ziii) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three one (31) Trading Days Day after the Company’s delivery to such Purchaser of such Pre-Notice, and only upon a written request by such Purchaser, the Company shall promptly, but no later than one two (12) Trading Day Days after such request, deliver to such Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A1) identify and describe the Offered Securities, (B2) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (3) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (C4) offer to issue and sell to or exchange with such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of thirty percent (30%) of the Offered Securities, provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 4.11 shall be (xa) based on such Purchaser’s pro rata portion of the aggregate number of Shares purchased hereunder by all Purchasers Purchaser (the “Basic Amount”), and (yb) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth first (5th1st) Business Trading Day after such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each such Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser such Purchasers who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth first (5th1st) Business Trading Day after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x1) the execution of such Subsequent Placement Agreement, and (y2) either (Ia) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIb) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4.11(c) above), then each such Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than on a pro rata basis based on the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.12(b) above multiplied by a fraction, (A) the numerator of which shall be the revised number or amount of Offered Securities the Company actually proposes as compared to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to this Section 4.12 prior to such reduction) and (B) the denominator of which shall be the original number or amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.12(a4.11(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser shall acquire from the Company, and the Company shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(f) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.12 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(g) . The Company and each Purchaser agree that if any Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hf) Notwithstanding anything to the contrary in this Section 4.12 4.11 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the fifth (5th) Business Trading Day following delivery of the Offer Notice. If by such fifth (5th) Business Trading Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser with another Offer Notice and such Purchaser will again have the right of participation set forth in this Section 4.12. .
(g) The Company shall not be permitted to deliver more than one such Offer Notice to such any Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4.11(b).
(ih) Any Offered Securities not acquired by a Purchaser or other Persons in accordance with this Section 4.11 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement. The restrictions contained in this Section 4.12 4.11 shall not apply in connection with the issuance of any Exempt IssuanceIssuances.
Appears in 1 contract
Samples: Securities Purchase Agreement (ZW Data Action Technologies Inc.)
Participation Right. Until thirty (30) days after At any time on or prior to the second anniversary of the Additional Closing Expiration Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(p). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(p) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 35% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(p) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(p)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(p)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(p) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(p)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(p)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(p) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(p) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(p). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(p)(ii).
(iix) The restrictions contained in this Section 4.12 4(p) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(p) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (One Stop Systems, Inc.)
Participation Right. Until thirty From the date hereof until the date that is the two (302) days after year anniversary of the Closing Initial Exercise Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the Securities Act)), any Convertible Securities, any debt, any preferred shares or any purchase rights (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.126. The Company acknowledges and agrees that the right set forth in this Section 4.12 6 is a right granted by the Company, separately, to each PurchaserHolder (including, each “beneficial holder” of warrants) as of the time of such Subsequent Placement (taken together with all Affiliates of such Holder (and/or “beneficial holder) of at least 150,000 Warrants, provided such Holder has notified the Company of such minimum ownership, either directly or by virtue of filing a Schedule 13G at least three (3) days before such Subsequent Placement (each such Holder, a “Qualified Holder”).
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Qualified Holder a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Qualified Holder is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Qualified Holder that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Qualified Holder within three (3) Trading Days after the Company’s delivery to such Purchaser Qualified Holder of such Pre-Notice, and only upon a written request by such PurchaserQualified Holder, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Qualified Holder an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Qualified Holder in accordance with the terms of the Offer such PurchaserQualified Holder’s pro rata portion of thirty percent (30%) % of the Offered Securities, provided that the number of Offered Securities which such Purchaser Qualified Holder shall have the right to subscribe for under this Section 4.12 6 shall be (x) based on such PurchaserQualified Holder’s pro rata portion of the aggregate number of Warrants Shares purchased hereunder remaining exercisable by all Purchasers Qualified Holders (the “Basic Amount”), and (y) with respect to each Purchaser Qualified Holder that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Qualified Holders as such Purchaser Qualified Holder shall indicate it will purchase or acquire should the other Purchasers Qualified Holders subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Qualified Holder shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser Qualified Holder must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserQualified Holder’s Basic Amount that such Purchaser Qualified Holder elects to purchase and, if such Purchaser Qualified Holder shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Qualified Holder elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Qualified Holders are less than the total of all of the Basic Amounts, then each Purchaser Qualified Holder who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Qualified Holder who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Qualified Holder bears to the total Basic Amounts of all Purchasers Qualified Holders that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Qualified Holder a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Qualified Holder (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c6(c) above), then each Purchaser Qualified Holder may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Qualified Holder elected to purchase pursuant to Section 4.12(b6(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Qualified Holders pursuant to this Section 4.12 6 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Qualified Holder so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Qualified Holders in accordance with Section 4.12(a6(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Qualified Holder shall acquire from the Company, and the Company shall issue to such PurchaserQualified Holder, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d6(d) above if such Purchaser Qualified Holder has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Qualified Holder of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Qualified Holder of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Qualified Holder and its counsel.
(f) Any Offered Securities not acquired by a Purchaser Qualified Holder or other Persons in accordance with this Section 4.12 6 may not be issued, sold or exchanged until they are again offered to such Purchaser Qualified Holder under the procedures specified in this Agreement.
(g) The Company and each Purchaser Qualified Holder agree that if any Purchaser Qualified Holder elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Qualified Holder shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 6 and unless otherwise agreed to by such PurchaserQualified Holder, the Company shall either confirm in writing to such Purchaser Qualified Holder that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Qualified Holder will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserQualified Holder, such transaction shall be deemed to have been abandoned and such Purchaser Qualified Holder shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Qualified Holder with another Offer Notice and such Purchaser Qualified Holder will again have the right of participation set forth in this Section 4.126. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Qualified Holder in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b6(b).
(i) The restrictions contained in this Section 4.12 6 shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 6 by providing terms or conditions to one Qualified Holder that are not provided to all Qualified Holders.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Innovative Eyewear Inc)
Participation Right. Until thirty (30) days after From the date hereof through the one year anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(n). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(n) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice as to whether Buyer wants to receive material, non-public information about the Company (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if . Upon the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether written request of Buyer to receive such Purchaser is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Aw) identify and describe the Offered Securities, (Bx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (Cz) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such Purchaser’s pro rata portion up to an aggregate of thirty percent (30%) 50% of the Offered Securities, provided that if the number Company’s counterparties to a Securities Purchase Agreement dated as of January 12, 2015 and the Company’s counterparties to a Securities Purchase Agreement dated as of August 11, 2014 elect to exercise participation rights for the purchase of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.12 shall be (x) based on such Purchaser’s pro rata portion of that in the aggregate number of Shares purchased hereunder by all Purchasers (the “Basic Amount”), and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion exceed 50% of the Offered Securities attributable (such percentage of Offered Securities for which the participation rights are exercised being the “Prior Participation Percentage”), then the participation right granted to the Basic Amounts Buyer under this Section shall automatically be reduced to up to a percentage that equals the greater of other Purchasers as such Purchaser shall indicate it will purchase (a) 100% less the Prior Participation Percentage or acquire should the other Purchasers subscribe for less than their Basic Amounts (b) 25% (the “Undersubscription Participation Amount”), which process shall be repeated until each Purchaser shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Purchaser’s Basic the Participation Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five ten (510) Business Days days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to the participation right set forth in the Securities Purchase Agreement dated as of January 12, 2015, by and among the Company and the investors listed on the schedule of buyers attached thereto, or pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but then only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (xa) the execution of such Subsequent Placement Agreement, and (yb) either (Ix) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (IIy) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c5(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(n)(iii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyer pursuant to this Section 4.12 4(n) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyer in accordance with Section 4.12(a4(n)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d) above if such Purchaser has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(n) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, waiver or release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(n) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its SubsidiariesSubsidiaries and any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and Buyer or any of its affiliates, on the other hand, shall terminate. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice in accordance with, and such Purchaser subject to, the terms of this Section 4(n) and Buyer will again have the right of participation set forth in this Section 4.124(n). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(n)(ii).
(iix) The restrictions contained in this Section 4.12 4(n) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities.
Appears in 1 contract
Participation Right. Until thirty (30) days after At any time on or prior to the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.124(o). The Company acknowledges and agrees that the right set forth in this Section 4.12 4(o) is a right granted by the Company, separately, to each PurchaserBuyer.
(ai) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Buyer a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Buyer is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Buyer within three (3) Trading Days after the Company’s delivery to such Purchaser Buyer of such Pre-Notice, and only upon a written request by such PurchaserBuyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Buyer in accordance with the terms of the Offer such PurchaserBuyer’s pro rata portion of thirty percent (30%) 35% of the Offered Securities, provided that the number of Offered Securities which such Purchaser Buyer shall have the right to subscribe for under this Section 4.12 4(o) shall be (x) based on such PurchaserBuyer’s pro rata portion of the aggregate number original principal amount of Shares the Notes purchased hereunder by all Purchasers Buyers (the “Basic Amount”), and (y) with respect to each Purchaser Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Buyers as such Purchaser Buyer shall indicate it will purchase or acquire should the other Purchasers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Buyer shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(bii) To accept an Offer, in whole or in part, such Purchaser Buyer must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserBuyer’s Basic Amount that such Purchaser Buyer elects to purchase and, if such Purchaser Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Buyers are less than the total of all of the Basic Amounts, then each Purchaser Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Buyer bears to the total Basic Amounts of all Purchasers Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserBuyer’s receipt of such new Offer Notice.
(ciii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Buyer (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(div) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c4(o)(iii) above), then each Purchaser Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Buyer elected to purchase pursuant to Section 4.12(b4(o)(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Buyers pursuant to this Section 4.12 4(o) prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Buyer so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Buyers in accordance with Section 4.12(a4(o)(i) above.
(ev) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Buyer shall acquire from the Company, and the Company shall issue to such PurchaserBuyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d4(o)(iv) above if such Purchaser Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Buyer and its counsel.
(fvi) Any Offered Securities not acquired by a Purchaser Buyer or other Persons in accordance with this Section 4.12 4(o) may not be issued, sold or exchanged until they are again offered to such Purchaser Buyer under the procedures specified in this Agreement.
(gvii) The Company and each Purchaser Buyer agree that if any Purchaser Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Buyer shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration Rights Agreement.
(hviii) Notwithstanding anything to the contrary in this Section 4.12 4(o) and unless otherwise agreed to by such PurchaserBuyer, the Company shall either confirm in writing to such Purchaser Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Buyer will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserBuyer, such transaction shall be deemed to have been abandoned and such Purchaser Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Buyer with another Offer Notice and such Purchaser Buyer will again have the right of participation set forth in this Section 4.124(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b4(o)(ii).
(iix) The restrictions contained in this Section 4.12 4(o) shall not apply in connection with the Exempt Issuanceissuance of any Excluded Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or conditions to one Buyer that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement (Real Goods Solar, Inc.)
Participation Right. Until thirty (30) days after the Closing DateFor so long as this Warrant is outstanding, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities (as defined below), any debt, any preferred shares or any purchase rights (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement Placement”) unless the Company shall have first complied with this Section 4.125. The Company acknowledges and agrees that the right set forth in this Section 4.12 5 is a right granted by the Company, separately, to each PurchaserHolder as of the time of such Subsequent Placement of at least 350,000 Warrants (each such Holder, a “Qualified Holder”).
(a) At least five (5) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Purchaser Qualified Holder a written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether such Purchaser the Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Purchaser Qualified Holder that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Purchaser Qualified Holder within three (3) Trading Days after the Company’s delivery to such Purchaser Qualified Holder of such Pre-Notice, and only upon a written request by such PurchaserQualified Holder, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Purchaser Qualified Holder an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (CD) offer to issue and sell to or exchange with such Purchaser Qualified Holder in accordance with the terms of the Offer such PurchaserQualified Holder’s pro rata portion of thirty percent (30%) % of the Offered Securities, provided that the number of Offered Securities which such Purchaser Qualified Holder shall have the right to subscribe for under this Section 4.12 5 shall be (x) based on such PurchaserQualified Holder’s pro rata portion of the aggregate number of Purchased Shares purchased hereunder by all Purchasers Qualified Holders (the “Basic Amount”), and (y) with respect to each Purchaser Qualified Holder that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers Qualified Holders as such Purchaser Qualified Holder shall indicate it will purchase or acquire should the other Purchasers Qualified Holders subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Purchaser Qualified Holder shall have an opportunity to subscribe for any remaining Undersubscription Amount.
(b) To accept an Offer, in whole or in part, such Purchaser Qualified Holder must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such PurchaserQualified Holder’s Basic Amount that such Purchaser Qualified Holder elects to purchase and, if such Purchaser Qualified Holder shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser Qualified Holder elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers Qualified Holders are less than the total of all of the Basic Amounts, then each Purchaser Qualified Holder who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Purchaser Qualified Holder who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser Qualified Holder bears to the total Basic Amounts of all Purchasers Qualified Holders that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Purchaser Qualified Holder a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such PurchaserQualified Holder’s receipt of such new Offer Notice.
(c) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Purchaser Qualified Holder (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 68-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.12(c5(c) above), then each Purchaser Qualified Holder may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Purchaser Qualified Holder elected to purchase pursuant to Section 4.12(b5(b) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers Qualified Holders pursuant to this Section 4.12 5 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser Qualified Holder so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers Qualified Holders in accordance with Section 4.12(a5(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser Qualified Holder shall acquire from the Company, and the Company shall issue to such PurchaserQualified Holder, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced pursuant to Section 4.12(d5(d) above if such Purchaser Qualified Holder has so elected, upon the terms and conditions specified in the Offer. The purchase by such Purchaser Qualified Holder of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Purchaser Qualified Holder of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser Qualified Holder and its counsel.
(f) Any Offered Securities not acquired by a Purchaser Qualified Holder or other Persons in accordance with this Section 4.12 5 may not be issued, sold or exchanged until they are again offered to such Purchaser Qualified Holder under the procedures specified in this Agreement.
(g) The Company and each Purchaser Qualified Holder agree that if any Purchaser Qualified Holder elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Purchaser Qualified Holder shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(h) Notwithstanding anything to the contrary in this Section 4.12 5 and unless otherwise agreed to by such PurchaserQualified Holder, the Company shall either confirm in writing to such Purchaser Qualified Holder that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Purchaser Qualified Holder will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such PurchaserQualified Holder, such transaction shall be deemed to have been abandoned and such Purchaser Qualified Holder shall not be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Purchaser Qualified Holder with another Offer Notice and such Purchaser Qualified Holder will again have the right of participation set forth in this Section 4.125. The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser Qualified Holder in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.12(b5(b).
(i) The restrictions contained in this Section 4.12 5 shall not apply in connection with the issuance of any Exempt IssuanceIssuance (as defined in the Underwriting Agreement). The Company shall not circumvent the provisions of this Section 5 by providing terms or conditions to one Qualified Holder that are not provided to all.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Sunshine Biopharma, Inc)
