Participation Right. From the date hereof until 24 months after the Closing, except for Other Securities Purchase Agreements, if any, and the Company’s issuance of its equity securities to the Co-Investment Fund II, L.P. as a result of their demand to convert all or any portion of their loan into equity securities pursuant to First Amendment to Loan Documents dated June 15, 2010, the Company shall not effect any Subsequent Placement unless the Company shall have first complied with this Section 4.15. The Company acknowledges and agrees that the right set forth in this Section 4.15 is a right granted by the Company to Investor, for so long as it or any of its affiliates in the aggregate holds at least one percent of the Common Stock Deemed Outstanding (as defined in the Warrants) (the “Designated Investor”). (a) The Company shall deliver to the Designated Investor a 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 (w) identify and describe the Offered Securities, (x) 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 (z) offer to issue and sell to or exchange with the Designated Investor in accordance with the terms of the Offer the Designated Investor’s pro rata portion of the Offered Securities, calculated by dividing (i) the number of shares of Common Stock Deemed Outstanding (as defined in the Warrants) owned by the Designated Investor as of immediately prior to the Offer, by (ii) the Common Stock Deemed Outstanding (as defined in the Warrants) (such pro rata portion, the “Basic Amount”). (b) To accept an Offer, in whole or in part, the Designated Investor must deliver an irrevocable written notice to the Company prior to the end of the third (3rd) Business Day after such Designated Investor’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Designated Investor’s Basic Amount that such Designated Investor elects to purchase (the “Notice of Acceptance”). (c) The Company shall have twenty (20) Business Days from the expiration of the Offer Period above 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 the Designated 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 materially more favorable (when viewed on an aggregate basis) to the acquiring Person or Persons or materially less favorable (when viewed on an aggregate basis) to the Company than those set forth in the Offer Notice. (d) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Designated Investor shall acquire from the Company, subject to the terms and conditions specified in the Offer Notice, and the Company shall issue to the Designated Investor, the number or amount of Offered Securities specified in the Notices of Acceptance, subject to the terms and conditions specified in the Offer Notice. The purchase by the Designated Investor of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Designated Investor of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Designated Investor and its counsel and the Company and its counsel. (e) The Company and the Designated Investor agree that if the Designated 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 provisions whereby such Designated Investor shall be required to agree to any restrictions on trading as to any securities of the Company owned by such Designated Investor prior to such Subsequent Placement more restrictive in any material respect than the restrictions contained in the Transaction Documents. (f) Notwithstanding anything to the contrary in this Section 4.15 and unless otherwise agreed to by such Designated Investor, the Company shall either confirm in writing to such Designated 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 Designated Investor will not be in possession of any material, non-public information, by the thirtieth (30th) Business Day following delivery of the Offer Notice (or any later follow-up Offer Notice or offer terms provided pursuant to the terms of this Section 4.15(b) (the “Public Notice Date”). If by the Public Notice Date, 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 Designated Investor, such transaction shall be deemed to have been abandoned. (g) The restrictions contained in this Section 4.15 shall not apply in connection with the issuance of any Excluded Securities (as defined herein or as defined in the Warrants).
Appears in 1 contract
Samples: Securities Purchase Agreement (Health Benefits Direct Corp)
Participation Right. From the date hereof until 24 months after the Closingtwelve (12) month anniversary of the Closing Date, except for Other Securities Purchase Agreements, if any, and neither the Company’s issuance Company nor any of its equity securities to the Co-Investment Fund IISubsidiaries shall, L.P. as a result of their demand to convert all directly or any portion of their loan into equity securities pursuant to First Amendment to Loan Documents dated June 15indirectly, 2010, the Company shall not effect any Subsequent Placement unless the Company shall have first complied with this Section 4.154(n). The Company acknowledges and agrees that the right set forth in this Section 4.15 4(n) is a right granted by the Company Company, separately, to Investor, for so long as it or any of its affiliates in the aggregate holds at least one percent of the Common Stock Deemed Outstanding (as defined in the Warrants) (the “Designated Investor”)each Buyer.
(ai) The Company shall deliver to such Buyer via e-mail to the Designated Investor a e-mail address set forth across from such Buyer’s name on the Schedule of Buyers attached hereto 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 (w) identify and describe the Offered Securities, (x) 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 (z) offer to issue and sell to or exchange with the Designated Investor such Buyer in accordance with the terms of the Offer 100% of the Designated InvestorOffered Securities, provided that the number of Offered Securities which such Buyer shall have the right to subscribe for under this Section 4(n) shall be (a) based on such Buyer’s pro rata portion of the Offered Securities, calculated by dividing (i) the aggregate number of shares of Common Stock Deemed Outstanding Shares purchased hereunder by all Buyers (as defined in the Warrants) owned by the Designated Investor as of immediately prior to the Offer, by (ii) the Common Stock Deemed Outstanding (as defined in the Warrants) (such pro rata portion, the “Basic Amount”), and (b) with respect to each Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Buyers as such Buyer shall indicate it will purchase or acquire should the other Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(bii) To accept an Offer, in whole or in part, the Designated Investor such Buyer must deliver an irrevocable a written notice to the Company prior to the end of the third 2 hours and 30 minutes following (3rd1) Business Day after receipt via e-mail in accordance with Section 4(n)(i) by such Designated Investor’s receipt Buyer of the applicable Offer Notice and (2) oral confirmation via telephone by the Company from such Buyer of the receipt by such Buyer via e-mail (as applicable) of such Offer Notice (and (I) in the case of Cranshire, oral confirmation via telephone by the Company from Xxxxxxxx X. Xxxxx of the receipt by Cranshire via e-mail (as applicable) of such Offer Notice and (II) in the case of Xxxxxx Bay Master Fund Ltd. (“Xxxxxx Bay”), oral confirmation via telephone by the Company from either Xxxx Xxxx or Xxxxxx Xxxxxxxxxxxx of the receipt by Xxxxxx Bay via e-mail (as applicable) of such Offer Notice) (the “Offer Period”), setting forth the portion of the Designated Investorsuch Buyer’s Basic Amount that such Designated Investor Buyer elects to purchase and, if such Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Buyers are less than the total of all of the Basic Amounts, then 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”), 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 Buyer bears to the total Basic Amounts of all 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 Buyer a new Offer Notice and the Offer Period shall expire immediately following the end of 2 hours and 30 minutes following (1) receipt via e-mail in accordance with Section 4(n)(i) by such Buyer of such new Offer Notice and (2) oral confirmation via telephone by the Company from such Buyer of the receipt by such Buyer via e-mail (as applicable) of such new Offer Notice (and (I) in the case of Cranshire, oral confirmation via telephone by the Company from Xxxxxxxx X. Xxxxx of the receipt by Cranshire via e-mail (as applicable) of such new Offer Notice and (II) in the case of Xxxxxx Bay, oral confirmation via telephone by the Company from either Xxxx Xxxx or Xxxxxx Xxxxxxxxxxxx of the receipt by Xxxxxx Bay via e-mail (as applicable) of such new Offer Notice).
(ciii) The Company shall have twenty three (203) Business Days days from the expiration of the Offer Period above (i) 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 the Designated Investor a 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 (when viewed on an aggregate basis) to the acquiring Person or Persons or materially less favorable (when viewed on an aggregate basis) to the Company than those set forth in the Offer NoticeNotice and (ii) to publicly announce (a) the execution of such Subsequent Placement Agreement, and (b) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-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(n)(iii) above), then 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 Buyer elected to purchase pursuant to Section 4(n)(ii) above multiplied by a fraction, (i) 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 Buyers pursuant to this Section 4(n) prior to such reduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any 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 Buyers in accordance with Section 4(n)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Designated Investor such Buyer shall acquire from the Company, subject to the terms and conditions specified in the Offer Notice, and the Company shall issue to the Designated Investorsuch Buyer, the number or amount of Offered Securities specified in the Notices its Notice of Acceptance, subject to the terms and conditions specified in the Offer Notice. The purchase by the Designated Investor such Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Designated Investor such Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Designated Investor and its counsel and the Company such Buyer and its counsel.
(evi) Any Offered Securities not acquired by a Buyer or other Persons in accordance with this Section 4(n) may not be issued, sold or exchanged until they are again offered to such Buyer under the procedures specified in this Agreement.
(vii) The Company and the Designated Investor each Buyer agree that if the Designated Investor any 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 provisions provision whereby such Designated Investor Buyer shall be required to agree to any restrictions on trading as to any securities of the Company owned by such Designated Investor prior or be required to such Subsequent Placement more restrictive consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any material respect than agreement previously entered into with the restrictions contained in Company or any instrument received from the Transaction DocumentsCompany.
(fviii) Notwithstanding anything to the contrary in this Section 4.15 4(n) and unless otherwise agreed to by such Designated InvestorBuyer, the Company shall either confirm in writing to such Designated 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 Designated Investor Buyer will not be in possession of any material, non-public informationinformation regarding the Company and its Subsidiaries, by the thirtieth third (30th3rd) Business Day day following delivery of the Offer Notice (or any later follow-up Offer Notice or offer terms provided pursuant to the terms of this Section 4.15(b) (the “Public Notice Date”)Notice. If by the Public Notice Datesuch third (3rd) 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 Designated InvestorBuyer, such transaction shall be deemed to have been abandonedabandoned and such 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 Buyer with another Offer Notice in accordance with, and subject to, the terms of this Section 4(n) and such Buyer will again have the right of participation set forth in this Section 4(n). The Company shall not be permitted to deliver more than two Offer Notices to such Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4(n).
(gix) The restrictions contained in this Section 4.15 4(n) shall not apply in connection with the issuance of (i) any Excluded Securities and (ii) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as defined herein such pursuant to an Approved Share Plan. The Company shall not circumvent the provisions of this Section 4(n) by providing terms or as defined in the Warrants)conditions to one Buyer that are not provided to all Buyers.
Appears in 1 contract
Participation Right. From the date hereof until 24 eighteen (18) months after the ClosingEffective 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, except for Other Securities Purchase Agreements, if any, and neither the Company’s issuance Company nor any of its equity securities to the Co-Investment Fund IISubsidiaries shall, L.P. as a result of their demand to convert all directly or any portion of their loan into equity securities pursuant to First Amendment to Loan Documents dated June 15indirectly, 2010, the Company shall not effect any Subsequent Placement (other than a Direct Participation (as defined below)) unless the Company shall have first complied with this Section 4.154(o). The Company acknowledges and agrees that the right set forth in this Section 4.15 4(o) is a right granted by the Company Company, separately, to Investor, for so long as it or any of its affiliates in the aggregate holds at least one percent of the Common Stock Deemed Outstanding (as defined in the Warrants) (the “Designated Investor”)each Buyer.
(ai) The Company shall deliver to the Designated Investor each Buyer a 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 (w) identify and describe the Offered Securities, (x) 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 (z) offer to issue and sell to or exchange with the Designated Investor such Buyer in accordance with the terms of the Offer (I) 100% of the Designated InvestorOffered Securities through the date that is one hundred twenty (120) days after the Effective 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 (II) thereafter, at least 50% of the Offered Securities, provided that the number of Offered Securities which such Buyer shall have the right to subscribe for under this Section 4(o) shall be (a) based on such Buyer’s pro rata portion of the Offered Securities, calculated by dividing (i) the aggregate number of shares of Common Stock Deemed Outstanding Shares purchased hereunder by all Buyers (as defined in the Warrants) owned by the Designated Investor as of immediately prior to the Offer, by (ii) the Common Stock Deemed Outstanding (as defined in the Warrants) (such pro rata portion, the “Basic Amount”), and (b) with respect to each Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Buyers as such Buyer shall indicate it will purchase or acquire should the other Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(bii) To accept an Offer, in whole or in part, the Designated Investor such Buyer must deliver an irrevocable a written notice to the Company prior to the end of the third fifth (3rd5th) Business Day after such Designated InvestorBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Designated Investorsuch Buyer’s Basic Amount that such Designated Investor Buyer elects to purchase and, if such Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Buyers are less than the total of all of the Basic Amounts, then 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”), 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 Buyer bears to the total Basic Amounts of all 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 Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Buyer’s receipt of such new Offer Notice.
(ciii) The Company shall have twenty ten (2010) Business Days from the expiration of the Offer Period above (i) 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 the Designated Investor a 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 (when viewed on an aggregate basis) to the acquiring Person or Persons or materially less favorable (when viewed on an aggregate basis) to the Company than those set forth in the Offer NoticeNotice and (ii) to publicly announce (a) the execution of such Subsequent Placement Agreement, and (b) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-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(o)(iii) above), then 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 Buyer elected to purchase pursuant to Section 4(o)(ii) above multiplied by a fraction, (i) 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 Buyers pursuant to this Section 4(o) prior to such reduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any 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 Buyers in accordance with Section 4(o)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Designated Investor such Buyer shall acquire from the Company, subject to the terms and conditions specified in the Offer Notice, and the Company shall issue to the Designated Investorsuch Buyer, the number or amount of Offered Securities specified in the Notices its Notice of Acceptance, subject to the terms and conditions specified in the Offer Notice. The purchase by the Designated Investor such Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Designated Investor such Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Designated Investor and its counsel and the Company such Buyer and its counsel.
(evi) Any Offered Securities not acquired by a Buyer or other Persons in accordance with this Section 4(o) may not be issued, sold or exchanged until they are again offered to such Buyer under the procedures specified in this Agreement.
(vii) The Company and the Designated Investor each Buyer agree that if the Designated Investor any 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 provisions provision whereby such Designated Investor Buyer shall be required to agree to any restrictions on trading as to any securities of the Company owned by such Designated Investor Buyer prior to such Subsequent Placement more restrictive in any material respect than the restrictions contained in the Transaction Documents.
(fviii) Notwithstanding anything to the contrary in this Section 4.15 4(o) and unless otherwise agreed to by such Designated InvestorBuyer, the Company shall either confirm in writing to such Designated 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 Designated Investor Buyer will not be in possession of any material, non-public information, by the thirtieth tenth (30th10th) Business Day day following delivery of the Offer Notice (or any later follow-up Offer Notice or offer terms provided pursuant to the terms of this Section 4.15(b) (the “Public Notice Date”)Notice. If by the Public Notice Datesuch tenth (10th) 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 Designated InvestorBuyer, such transaction shall be deemed to have been abandonedabandoned and such 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 Buyer with another Offer Notice and such Buyer will again have the right of participation set forth in this Section 4(o). The Company shall not be permitted to deliver more than one such Offer Notice to such Buyer in any sixty (60) day period.
(gix) The restrictions contained in this Section 4.15 4(o) shall not apply in connection with the issuance of any Excluded Securities (as defined herein Securities. The Company shall not circumvent the provisions of this Section 4(o) by providing terms or as defined in the Warrants)conditions to one Buyer that are not provided to all.
Appears in 1 contract
Participation Right. From the date hereof until 24 months after the Closing, except for the Other Securities Purchase Agreements, if any, and the Company’s issuance of its equity securities to the Co-Investment Fund II, L.P. as a result of their demand to convert all or any portion of their loan into equity securities pursuant to First Amendment to Loan Documents dated June 15, 2010, the Company shall not effect any Subsequent Placement unless the Company shall have first complied with this Section 4.15. The Company acknowledges and agrees that the right set forth in this Section 4.15 is a right granted by the Company to each Investor, for so long as it or any of its affiliates in the aggregate holds at least one percent of the Common Stock Deemed Outstanding (as defined in the Warrants) (the “Designated Investor”).
(a) The Company shall deliver to the Designated each Investor a 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 (w) identify and describe the Offered Securities, (x) 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 (z) offer to issue and sell to or exchange with the Designated such Investor in accordance with the terms of the Offer the Designated such Investor’s pro rata portion of the Offered Securities, calculated by dividing (i) the number of shares of Common Stock Deemed Outstanding (as defined in the Warrants) owned by the Designated such Investor as of immediately prior to the Offer, by (ii) the Common Stock Deemed Outstanding (as defined in the Warrants) (such pro rata portion, the “Basic Amount”).
(b) To accept an Offer, in whole or in part, the Designated an Investor must deliver an irrevocable written notice to the Company prior to the end of the third (3rd) Business Day after such Designated Investor’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Designated such Investor’s Basic Amount that such Designated Investor elects to purchase (the “Notice of Acceptance”).
(c) The Company shall have twenty (20) Business Days from the expiration of the Offer Period above 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 the Designated Investor Investors (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 (when viewed on an aggregate basis) to the acquiring Person or Persons or materially less favorable (when viewed on an aggregate basis) to the Company than those set forth in the Offer Notice.
(d) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Designated Investor Investors shall acquire from the Company, subject to the terms and conditions specified in the Offer Notice, and the Company shall issue to the Designated InvestorInvestors, the number or amount of Offered Securities specified in the Notices of Acceptance, subject to the terms and conditions specified in the Offer Notice. The purchase by the Designated Investor Investors of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Designated Investor Investors of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Designated Investor Investors and its their counsel and the Company and its counsel.
(e) The Company and the Designated each Investor agree that if the Designated such 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 provisions whereby such Designated Investor shall be required to agree to any restrictions on trading as to any securities of the Company owned by such Designated Investor prior to such Subsequent Placement more restrictive in any material respect than the restrictions contained in the Transaction Documents.
(f) Notwithstanding anything to the contrary in this Section 4.15 and unless otherwise agreed to by such Designated each Investor, the Company shall either confirm in writing to such Designated each 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 Designated Investor will not be in possession of any material, non-public information, by the thirtieth (30th) Business Day following delivery of the Offer Notice (or any later follow-up Offer Notice or offer terms provided pursuant to the terms of this Section 4.15(b) (the “Public Notice Date”). If by the Public Notice Date, 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 Designated each Investor, such transaction shall be deemed to have been abandoned.
(g) The restrictions contained in this Section 4.15 shall not apply in connection with the issuance of any Excluded Securities (as defined herein or as defined in the Warrants).
Appears in 1 contract
Samples: Securities Purchase Agreement (InsPro Technologies Corp)
Participation Right. From the date hereof until 24 months one hundred and eighty (180) days after the ClosingClosing Date, except for Other Securities Purchase Agreements, if any, and neither the Company’s issuance Company nor any of its equity securities to the Co-Investment Fund IISubsidiaries shall, L.P. as a result of their demand to convert all directly or any portion of their loan into equity securities pursuant to First Amendment to Loan Documents dated June 15indirectly, 2010, the Company shall not effect any Subsequent Placement unless the Company shall have first complied with this Section 4.154.10. The Company acknowledges and agrees that the right set forth in this Section 4.15 4.10 is a right granted by the Company Company, separately, to Investor, for so long as it or any of its affiliates in the aggregate holds at least one percent of the Common Stock Deemed Outstanding (as defined in the Warrants) (the “Designated Investor”)each Purchaser.
(a) The At least twelve (12) hours prior to any proposed or intended Subsequent Placement (as defined below), the Company or, at the Company’s direction, any designated representative of the Company, shall deliver to the Designated Investor a each 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 (wA) identify and describe the Offered Securities, (xB) describe the approximate price (if known, but in no event later than three hours prior to the end of the Offer Period (as defined below) (which Offer Period shall be extended, as necessary, on an hour-by-hour basis, to comply with the foregoing)) and other terms upon which they are to be issued, sold or exchanged, and the approximate 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 (zC) offer to issue and sell to or exchange with the Designated Investor Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of 50% of the Designated InvestorOffered Securities; provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.10 shall be based on such Purchaser’s pro rata portion of the Offered Securities, calculated aggregate dollar amount of the Securities purchased hereunder by dividing all Purchasers (i) the number of shares of Common Stock Deemed Outstanding (as defined in the Warrants) owned by the Designated Investor as of immediately prior to the Offer, by (ii) the Common Stock Deemed Outstanding (as defined in the Warrants) (such pro rata portion, the “Basic Amount”), and 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, the Designated Investor such Purchaser must deliver an irrevocable a written notice to the Company (or, if the Offer Notice was sent by a Company representative, to such representative) prior to the end of the third twelve (3rd12) Business Day hours after such Designated InvestorPurchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Designated Investorsuch Purchaser’s Basic Amount that such Designated Investor 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 such Notice of Acceptance is not received by the Company or its applicable representative prior to the end of the Offer Period, such Purchaser shall be deemed to reject the offer set forth in the Offer Notice and no such further action by the Company or such representative shall be required, except as and to the extent expressly set forth below. 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 in any material respect, as determined in good faith by the Company, prior to the expiration of the Offer Period, the Company (or its applicable representative) shall deliver to each Purchaser a new Offer Notice and the Offer Period shall expire twelve (12) hours after such Purchaser’s receipt of such new Offer Notice.
(c) The Company shall have twenty three (203) Business Days from the expiration of the Offer Period above (A) to offeragree to, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Designated Investor 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 materially more favorable (when viewed on an aggregate basis) to the acquiring Person or Persons or materially less favorable (when viewed on an aggregate basis) to the Company than those set forth in the Offer NoticeNotice and (B) to publicly announce the execution of such Subsequent Placement Agreement.
(d) In the event the Company shall propose to sell less than 50% of all the Refused Securities (any such sale to be in the manner and on the terms specified Section 4.10(c) above), the Company or its representative shall so notify the Purchasers no less than six (6) hours prior to entering into a definitive agreement with respect to such reduced sale, and such Purchasers then may, at its sole option and in its sole discretion, within three (3) hours of receiving such notice, notify the Company or its representative that it intends to withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to a number or amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.10(b) above multiplied by a fraction, (i) 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 4.10 prior to such reduction) and (ii) 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 Buyers in accordance with Section 4.10(a) above. If the Company does not receive notice from the Purchaser of its intention to withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance, such purchaser shall be required to purchaser such number or amount of the Offered Securities specified in its Notice of Acceptance.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Designated Investor such Purchaser shall acquire from the Company, subject to the terms and conditions specified in the Offer Notice, and the Company shall issue to the Designated Investorsuch Purchaser, the number or amount of Offered Securities specified in the Notices its Notice of Acceptance, subject as reduced pursuant to Section 4.10(d) above if such Purchaser has so elected in compliance with such section, upon the terms and conditions specified in the Offer Notice. The purchase by the Designated Investor of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Designated Investor of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Designated Investor and its counsel and the Company and its counsel.
(e) The Company and the Designated Investor agree that if the Designated 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 provisions whereby such Designated Investor shall be required to agree to any restrictions on trading as to any securities of the Company owned by such Designated Investor prior to such Subsequent Placement more restrictive in any material respect than the restrictions contained in the Transaction Documents.
(f) Notwithstanding anything to the contrary in this Section 4.15 4.10 and unless otherwise agreed to by such Designated InvestorPurchaser, the Company shall either confirm in writing to such Designated Investor 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 Designated Investor Purchaser will not be in possession of any material, non-public information, by the thirtieth third (30th3rd) Business Day following delivery of the Offer Notice (or any later follow-up Offer Notice or offer terms provided pursuant to the terms of this Section 4.15(b) (the “Public Notice Date”)Notice. If by the Public Notice Datesuch third (3rd) 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 Designated InvestorPurchaser, such transaction shall be deemed to have been abandonedabandoned 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 subsequently 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 4.10.
(g) The restrictions contained in this Section 4.15 4.10 shall not apply in connection with the issuance of any Excluded Securities Transactions (as defined herein below). The Company shall not circumvent the provisions of this Section 4.10 by providing terms or as defined in the Warrants)conditions to one Purchaser that are not provided to all.
Appears in 1 contract
Samples: Securities Purchase Agreement
Participation Right. From the date hereof until 24 months after the Closing, except for Other Securities Purchase Agreements, if any, and (a) If any of the Company’s issuance , Software or Games (the “Issuer”) intends, directly or indirectly, to offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its equity or equity equivalent securities, including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for its Common Shares or securities convertible or exchangeable into its Common Shares (any such offer, sale, grant, disposition or announcement being referred to the Co-Investment Fund II, L.P. as a result of their demand “Subsequent Placement”) at any time prior to convert all or any portion of their loan into equity securities pursuant to First Amendment to Loan Documents dated June 15, 2010a Qualified IPO, the Company shall not effect any Subsequent Placement unless the Company Issuer shall have first complied with this Section 4.15. The Company acknowledges and agrees 4.12, provided that the right set forth in no Issuer shall be required to comply with this Section 4.15 is a right granted by 4.12 in connection with the Company Permitted Software Debt and the Investors shall have no rights under this Section 4.12 with respect to Investor, for so long as it or any of its affiliates in the aggregate holds at least one percent of the Common Stock Deemed Outstanding (as defined in the Warrants) (the “Designated Investor”)such Permitted Software Debt.
(ab) The Company shall deliver to the Designated each Investor a 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 (w) identify and describe the Offered Securities, (x) describe the price and other terms upon which they are to be issued, sold issued or exchangedsold, and the number or amount of the Offered Securities to be issued, sold issued or exchangedsold, (y) identify the Persons persons or entities (if known) to which or with which the Offered Securities are to be offered, issued, issued or sold or exchanged and (z) offer to issue and sell to or exchange with the Designated Investor in accordance with the terms such Investors an aggregate amount representing thirty five percent (35%) of the Offer aggregate principal amount of the Designated Notes purchased by all of the Investors at the Closing, to be allocated among such Investors (a) based on such Investor’s pro rata portion of the Offered Securities, calculated by dividing Pro Rata Share (i) the number of shares of Common Stock Deemed Outstanding (as defined in the Warrants) owned by the Designated Investor as of immediately prior to the Offer, by (ii) the Common Stock Deemed Outstanding (as defined in the Warrants) (such pro rata portion, the “Basic Amount”), and (b) with respect to each Investor that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Investors as such Investor shall indicate it will purchase or acquire should the other Investors subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(bc) To accept an Offer, in whole or in part, the Designated such Investor must deliver an irrevocable a written notice to the Company prior to the end of the third second (3rd2nd) Business Day by 5:00 p.m New York City time after such Designated Investor’s receipt of the Offer Notice containing the final definitive terms of the Subsequent Placement (the “Offer Period”), setting forth the portion of the Designated such Investor’s Basic Amount that such Designated Investor elects to purchase and, if such Investor shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Investor elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Investors are less than the total of all of the Basic Amounts, then each 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, 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 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 Investor bears to the total Basic Amounts of all Investors that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent its deems reasonably necessary.
(cd) The Company shall have twenty (20) Business Days from If the expiration aggregate dollar amount of the Offer Period above Subsequent Placement exceeds the amount purchasable by the Investors hereunder or the Investors, collectively, do not elect to offerpurchase the entire amount of the Subsequent Placement which may be purchased by such Investors pursuant to this Section 4.12, issue, the Issuer may offer and sell or exchange all or any part of such Offered Securities as the securities to which a Notice of Acceptance has the Investors were entitled to purchase hereunder, or the securities not been given purchasable by the Designated Investor (Investors hereunder, as the “Refused Securities”) pursuant case may be, to a definitive agreement(sthird party (which may include any Investor), provided that such sale must occur within thirty (30) (days of the “Subsequent Placement Agreement”), but only to Closing Date and on the offerees described in the Offer Notice (if so described therein) and only upon same terms and conditions (including, without limitation, unit prices and interest rates) that are not materially more favorable (when viewed on an aggregate basis) to the acquiring Person or Persons or materially less favorable (when viewed on an aggregate basis) to the Company than those set forth in the Offer Notice.
(d) Upon . Any such sale made after such thirty-day period, or on terms or conditions different than the closing terms set forth in the Offer Note, must again be offered to the Investors in accordance with Section 4.12 above. Notwithstanding anything herein to the contrary, in the event that aggregate purchase price for all securities proposed to be issued in a Subsequent Placement by an Issuer is less than 35% of the issuance, sale or exchange aggregate principal amount of all or less than the Notes issued to all of the Refused SecuritiesInvestors at the Closing, the Designated Investor shall acquire from the Company, subject to the terms and conditions specified in the Offer Notice, and the Company shall issue to the Designated Investor, the number or dollar amount of Offered Securities specified in the Notices such securities to which each Investor is entitled to purchase hereunder shall be proportionately reduced. Each purchase of Acceptance, subject securities by Investors pursuant to the terms and conditions specified in the Offer Notice. The purchase by the Designated Investor of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Designated Investor of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Designated Investor and its counsel and the Company and its counsel.
(e) The Company and the Designated Investor agree that if the Designated Investor elects to participate in the Offer, neither this Section 4.12 shall take place on 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 provisions whereby such Designated Investor shall be required to agree to any restrictions on trading as to any securities of the Company owned by such Designated Investor prior to such Subsequent Placement more restrictive in any material respect than the restrictions contained in the Transaction DocumentsClosing Date.
(f) Notwithstanding anything to the contrary in this Section 4.15 and unless otherwise agreed to by such Designated Investor, the Company shall either confirm in writing to such Designated 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 Designated Investor will not be in possession of any material, non-public information, by the thirtieth (30th) Business Day following delivery of the Offer Notice (or any later follow-up Offer Notice or offer terms provided pursuant to the terms of this Section 4.15(b) (the “Public Notice Date”). If by the Public Notice Date, 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 Designated Investor, such transaction shall be deemed to have been abandoned.
(g) The restrictions contained in this Section 4.15 shall not apply in connection with the issuance of any Excluded Securities (as defined herein or as defined in the Warrants).
Appears in 1 contract
Samples: Note Purchase Agreement (CDC Corp)
Participation Right. From Until all of the date hereof until 24 months after shares of Preferred Stock have been converted or redeemed in accordance with the Closingterms of the Certificate of Determination, except for Other Securities Purchase Agreements, if any, and neither the Company’s issuance Company nor any of its equity securities to the Co-Investment Fund IISubsidiaries shall, L.P. as a result of their demand to convert all directly or any portion of their loan into equity securities pursuant to First Amendment to Loan Documents dated June 15indirectly, 2010, the Company shall not effect any Subsequent Placement or any issuance of debt (excluding bona fide third-party commercial bank debt) (such issuance of debt, a “Debt Placement”) unless the Company shall have first complied with this Section 4.154(n). The Company acknowledges and agrees that the right set forth in this Section 4.15 4(n) is a right granted by the Company Company, separately, to Investor, for so long as it or any of its affiliates in the aggregate holds at least one percent of the Common Stock Deemed Outstanding (as defined in the Warrants) (the “Designated Investor”)each Buyer.
(ai) The Company shall deliver to the Designated Investor a 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 or Debt Placement, which Offer Notice shall (w) identify and describe the Offered Securities, (x) 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 (z) offer to issue and sell to or exchange with the Designated Investor such Buyer in accordance with the terms of the Offer all of the Designated InvestorOffered Securities if the aggregate offering price for all the Offered Securities in such Subsequent Placement or Debt Placement (as the case may be) is less than or equal to $25,000,000 (or 25% of the Offered Securities if the aggregate offering price for all the Offered Securities in such Subsequent Placement or Debt Placement (as the case may be) is greater than $25,000,000, as applicable), provided that the number of Offered Securities which such Buyer shall have the right to subscribe for under this Section 4(n) shall be (a) based on such Buyer’s pro rata portion of the Offered Securities, calculated by dividing (i) the aggregate number of shares of Common Preferred Stock Deemed Outstanding purchased hereunder by all Buyers (as defined in the Warrants) owned by the Designated Investor as of immediately prior to the Offer, by (ii) the Common Stock Deemed Outstanding (as defined in the Warrants) (such pro rata portion, the “Basic Amount”), and (b) with respect to each Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Buyers as such Buyer shall indicate it will purchase or acquire should the other Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(bii) To accept an Offer, in whole or in part, the Designated Investor such Buyer must deliver an irrevocable a written notice to the Company prior to the end of the third fifth (3rd5th) Business Day after such Designated InvestorBuyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Designated Investorsuch Buyer’s Basic Amount that such Designated Investor Buyer elects to purchase and, if such Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Buyers are less than the total of all of the Basic Amounts, then 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”), 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 Buyer bears to the total Basic Amounts of all 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 Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Buyer’s receipt of such new Offer Notice.
(ciii) The Company shall have twenty fifteen (2015) Business Days from the expiration of the Offer Period above to (A) 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 the Designated Investor a 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 (when viewed on an aggregate basis) to the acquiring Person or Persons or materially less favorable (when viewed on an aggregate basis) to the Company than those set forth in the Offer NoticeNotice and (B) publicly announce (a) the execution of such Subsequent Placement Agreement, and (b) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-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(n)(iii) above), then 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 Buyer elected to purchase pursuant to Section 4(n)(ii) above multiplied by a fraction, (i) 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 Buyers pursuant to this Section 4(n) prior to such reduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any 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 Buyers in accordance with Section 4(n)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Designated Investor such Buyer shall acquire from the Company, subject to the terms and conditions specified in the Offer Notice, and the Company shall issue to the Designated Investorsuch Buyer, the number or amount of Offered Securities specified in the Notices its Notice of Acceptance, subject to the terms and conditions specified in the Offer Notice. The purchase by the Designated Investor such Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Designated Investor such Buyer of a separate purchase agreement relating to such Offered Securities that incorporates the terms of the Offer Notice and that is reasonably satisfactory in form and substance to the Designated Investor and its counsel and the Company such Buyer and its counsel.
(evi) Any Offered Securities not acquired by a Buyer or other Persons in accordance with this Section 4(n) may not be issued, sold or exchanged until they are again offered to such Buyer under the procedures specified in this Agreement.
(vii) The Company and the Designated Investor each Buyer agree that if the Designated Investor any 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 provisions provision whereby such Designated Investor Buyer shall be required to agree to any restrictions on trading as to any securities of the Company owned by such Designated Investor Buyer prior to such Subsequent Placement more restrictive in any material respect than the restrictions contained in the Transaction Documentsor Debt Placement.
(fviii) Notwithstanding anything to the contrary in this Section 4.15 4(n) and unless otherwise agreed to by such Designated InvestorBuyer, the Company shall either confirm in writing to such Designated Investor Buyer that the transaction with respect to the Subsequent Placement or Debt 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 Designated Investor Buyer will not be in possession of any material, non-public information, by the thirtieth twelfth (30th12th) Business Day following delivery of the Offer Notice (or any later follow-up Offer Notice or offer terms provided pursuant to the terms of this Section 4.15(b) (the “Public Notice Date”)Notice. If by the Public Notice Datesuch twelfth (12th) 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 Designated InvestorBuyer, such transaction shall be deemed to have been abandonedabandoned and such 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 Buyer with another Offer Notice and such Buyer will again have the right of participation set forth in this Section 4(n). The Company shall not be permitted to deliver more than one such Offer Notice (not including subsequent Offer Notices relating to the same transaction) to such Buyer in any sixty (60) day period.
(gix) The restrictions contained in this Section 4.15 4(n) shall not apply in connection with the issuance of any Excluded Securities (as defined herein Securities. The Company shall not circumvent the provisions of this Section 4(n) by providing terms or as defined in the Warrants)conditions to one Buyer that are not provided to all.
Appears in 1 contract
Participation Right. From the date hereof until 24 months one hundred and eighty (180) days after the ClosingClosing Date, except for Other Securities Purchase Agreements, if any, and neither the Company’s issuance Company nor any of its equity securities to the Co-Investment Fund IISubsidiaries shall, L.P. as a result of their demand to convert all directly or any portion of their loan into equity securities pursuant to First Amendment to Loan Documents dated June 15indirectly, 2010, the Company shall not effect any Subsequent Placement unless the Company shall have first complied with this Section 4.154.10. The Company acknowledges and agrees that the right set forth in this Section 4.15 4.10 is a right granted by the Company Company, separately, to Investor, for so long as it or any of its affiliates in the aggregate holds at least one percent of the Common Stock Deemed Outstanding (as defined in the Warrants) (the “Designated Investor”)each Purchaser.
(a) The At least twelve (12) hours prior to any proposed or intended Subsequent Placement (as defined below), the Company or, at the Company's direction, any designated representative of the Company, shall deliver to the Designated Investor a each 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 (wA) identify and describe the Offered Securities, (xB) describe the approximate price (if known, but in no event later than three hours prior to the end of the Offer Period (as defined below) (which Offer Period shall be extended, as necessary, on an hour-by-hour basis, to comply with the foregoing)) and other terms upon which they are to be issued, sold or exchanged, and the approximate 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 (zC) offer to issue and sell to or exchange with the Designated Investor Purchaser in accordance with the terms of the Offer such Purchaser's pro rata portion of 50% of the Designated Investor’s Offered Securities; provided that the number of Offered Securities which such Purchaser shall have the right to subscribe for under this Section 4.10 shall be based on such Purchaser's pro rata portion of the aggregate dollar amount of the Securities purchased hereunder by all Purchasers (the "Basic Amount"), and with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities, calculated by dividing (i) the number of shares of Common Stock Deemed Outstanding (as defined in the Warrants) owned by the Designated Investor as of immediately prior Securities attributable to the OfferBasic 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"), by (ii) the Common Stock Deemed Outstanding (as defined in the Warrants) (such pro rata portion, the “Basic 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, the Designated Investor such Purchaser must deliver an irrevocable a written notice to the Company (or, if the Offer Notice was sent by a Company representative, to such representative) prior to the end of the third twelve (3rd12) Business Day hours after such Designated Investor’s Purchaser's receipt of the Offer Notice (the “"Offer Period”"), setting forth the portion of the Designated Investor’s such Purchaser's Basic Amount that such Designated Investor 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 such Notice of Acceptance is not received by the Company or its applicable representative prior to the end of the Offer Period, such Purchaser shall be deemed to reject the offer set forth in the Offer Notice and no such further action by the Company or such representative shall be required, except as and to the extent expressly set forth below. 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 in any material respect, as determined in good faith by the Company, prior to the expiration of the Offer Period, the Company (or its applicable representative) shall deliver to each Purchaser a new Offer Notice and the Offer Period shall expire twelve (12) hours after such Purchaser's receipt of such new Offer Notice.
(c) The Company shall have twenty three (203) Business Days from the expiration of the Offer Period above (A) to offeragree to, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Designated Investor 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 materially more favorable (when viewed on an aggregate basis) to the acquiring Person or Persons or materially less favorable (when viewed on an aggregate basis) to the Company than those set forth in the Offer NoticeNotice and (B) to publicly announce the execution of such Subsequent Placement Agreement.
(d) In the event the Company shall propose to sell less than 50% of all the Refused Securities (any such sale to be in the manner and on the terms specified Section 4.10(c) above), the Company or its representative shall so notify the Purchasers no less than six (6) hours prior to entering into a definitive agreement with respect to such reduced sale, and such Purchasers then may, at its sole option and in its sole discretion, within three (3) hours of receiving such notice, notify the Company or its representative that it intends to withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to a number or amount that shall be not less than the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.10(b) above multiplied by a fraction, (i) 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 4.10 prior to such reduction) and (ii) 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 Buyers in accordance with Section 4.10(a) above. If the Company does not receive notice from the Purchaser of its intention to withdraw its Notice of Acceptance or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance, such purchaser shall be required to purchaser such number or amount of the Offered Securities specified in its Notice of Acceptance.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Designated Investor such Purchaser shall acquire from the Company, subject to the terms and conditions specified in the Offer Notice, and the Company shall issue to the Designated Investorsuch Purchaser, the number or amount of Offered Securities specified in the Notices its Notice of Acceptance, subject as reduced pursuant to Section 4.10(d) above if such Purchaser has so elected in compliance with such section, upon the terms and conditions specified in the Offer Notice. The purchase by the Designated Investor of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Designated Investor of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Designated Investor and its counsel and the Company and its counsel.
(e) The Company and the Designated Investor agree that if the Designated 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 provisions whereby such Designated Investor shall be required to agree to any restrictions on trading as to any securities of the Company owned by such Designated Investor prior to such Subsequent Placement more restrictive in any material respect than the restrictions contained in the Transaction Documents.
(f) Notwithstanding anything to the contrary in this Section 4.15 4.10 and unless otherwise agreed to by such Designated InvestorPurchaser, the Company shall either confirm in writing to such Designated Investor 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 Designated Investor Purchaser will not be in possession of any material, non-public information, by the thirtieth third (30th3rd) Business Day following delivery of the Offer Notice (or any later follow-up Offer Notice or offer terms provided pursuant to the terms of this Section 4.15(b) (the “Public Notice Date”)Notice. If by the Public Notice Datesuch third (3rd) 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 Designated InvestorPurchaser, such transaction shall be deemed to have been abandonedabandoned 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 subsequently 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 4.10.
(g) The restrictions contained in this Section 4.15 4.10 shall not apply in connection with the issuance of any Excluded Securities Transactions (as defined herein below). The Company shall not circumvent the provisions of this Section 4.10 by providing terms or as defined in the Warrants)conditions to one Purchaser that are not provided to all.
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