Preemptive Right. (i) Subject to the following sentence, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB the right to purchase up to its Allotment of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities. (ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale. (iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities. (iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f). (v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities. (vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f). (vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 4 contracts
Samples: Investor Rights Agreement (Blue Owl Capital Inc.), Investor Rights Agreement (Blue Owl Capital Inc.), Business Combination Agreement (Altimar Acquisition Corp.)
Preemptive Right. If OIS shall propose to issue to any Offeror any Offered Securities, other than in Excluded Issuances, OIS shall, before consummating such proposed issuance, (i) Subject deliver a Notice to each Principal MV Shareholder two weeks prior to the following sentencedate of such proposed issuance, PubCo (on its own behalf which Notice shall also include the timing of closing and on behalf of each of its Subsidiaries) grants to NB the right to purchase up to its Allotment of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only statement as to the strip OIS’s obligation to confirm receipt of all such a Preemptive SecuritiesRights Acceptance, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice provide each Principal MV Shareholder the right of first refusal to purchase any or all of such Principal MV Shareholder’s Proportionate Share of such Offered Securities (an “Issuance Notice”) or, if OIS in the Notice makes the election provided in Section 3.02 to NB offer a Grossed Up Number of any proposed issuance or sale Subject Securities, such Principal MV Shareholder’s Proportionate Share of Preemptive Securities within five Business Days following any meeting such Grossed Up Number of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”Securities), have at the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice price per Offered Security, and otherwise on the same terms and conditions, including the purchase priceas OIS proposed to issue such Offered Securities to such Offeror, set forth in the Issuance Notice except as otherwise provided herein. Such right of first refusal shall be exercisable by delivering each Principal MV Shareholder if it gives a written notice to PubCo (a “Acceptance NoticePreemptive Rights Acceptance”). The ) stating that it is exercising such right, and stating the number of Subject Securities within, or the percentage of, its Proportionate Share with respect which it is exercising such right, within
(a) if the Value of the proposed purchase price of Agfa’s Proportionate Share of the Offered Securities exceeds the Threshold as then in effect, six weeks after delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only OIS to the closing Principal MV Shareholders of a Notice relating to such Offered Securities, or
(b) if the Value of the Subject Issuance actually occurring. The failure proposed purchase price of NB to deliver an Acceptance Notice by the end Agfa’s Proportionate Share of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect Offered Securities does not exceed the Threshold, three weeks after delivery by OIS to the purchase Principal MV Shareholders of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance a Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior relating to such deadlineOffered Securities; provided that, PubCo or its applicable Subsidiary in either case, OIS and the Principal MV Shareholders shall not thereafter issue or sell any Preemptive Securities without first again offering such securities cooperate and use their reasonable efforts to NB in accordance with enable the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, datePrincipal MV Shareholders, and time as specified by PubCo. Each each Principal MV Shareholder shall use its reasonable efforts to either exercise its right of PubCo first refusal or the Subsidiary, on the one hand, and NB, on the other hand, shall take all inform OIS that it will waive such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, right as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days after delivery by OIS of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)Notice.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 3 contracts
Samples: Merger Agreement (Ophthalmic Imaging Systems), Merger Agreement (Ophthalmic Imaging Systems), Right of First Refusal and Preemptive Rights Agreement (Ophthalmic Imaging Systems)
Preemptive Right. (ia) Subject to If, at any time after the following sentence, PubCo (on its own behalf and on behalf date of each of its Subsidiaries) grants to NB this Agreement the right to purchase up to its Allotment of any Preemptive Securities that PubCo Company or any of its Subsidiaries may from time shall propose to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, then each Eligible Party shall have the right to purchase (or, in the case of a Rollover Holdco Member, to direct Rollover Holdco to purchase in accordance with Section 6.11(a)) from the Company or such Subsidiary, as applicable (the “Preemptive Right”), on the same terms and not separately conditions (including at the same price per Preemptive Security) set forth in the Preemptive Rights Notice (as defined below), up to (i) a percentage of such Preemptive Securities so that the percentage obtained by dividing the number of Preemptive Securities that such Eligible Party is entitled to purchase (or, in the case of a Rollover Holdco Member, to direct Rollover Holdco to purchase in accordance with Section 6.11(a)) by the total number of Preemptive Securities is equal to the Percentage Share of such Member or Rollover Holdco Member, as applicable, plus (ii) any additional Preemptive Securities that such Eligible Party shall be entitled to purchase (or, in the case of a Rollover Holdco Member, to direct Rollover Holdco to purchase in accordance with Section 6.11(a)) pursuant to clause (ii) of Section 1.4(c). Each Eligible Party shall have the right to assign its Preemptive Right to any component of such strip of Preemptive Securitiesits Permitted Transferees.
(iib) PubCo In connection with any Preemptive Right, the Company shall, by written notice (a “Preemptive Rights Notice”), provide an offer to sell to each Eligible Party that number of Preemptive Securities of any proposed issuance in accordance with Section 1.4(c). Any Preemptive Rights Notice shall give include the applicable purchase price per Preemptive Security, the aggregate amount of Preemptive Securities offered, the number of Preemptive Securities offered to such Eligible Party in accordance with Section 1.4(a), the proposed closing date, the place and time for the issuance thereof (which shall be no less than 25 days from the date of such notice), a summary of the material rights and obligations of the Preemptive Securities and any other material terms and conditions of the offer.
(c) Within 15 days from the date of receipt of a Preemptive Rights Notice, any Eligible Party wishing to exercise its Preemptive Right concerning the Preemptive Securities referred to therein shall deliver written notice (an “Issuance Exercise Notice”) to NB the Company setting forth (i) the number of Preemptive Securities that such Eligible Party commits to purchase (or, in the case of a Rollover Holdco Member, commits to direct Rollover Holdco to purchase in accordance with Section 6.11(a)) (which may be for all or any portion of such Preemptive Securities offered to such Eligible Party in the Preemptive Rights Notice), and (ii) the portion (if any) of any proposed such Preemptive Securities the other Eligible Parties have not committed to purchase (or, in the case of a Rollover Holdco Member, have not committed to direct Rollover Holdco to purchase pursuant to Section 6.11(a)) pursuant to duly given Exercise Notices pursuant to this Section 1.4(c) that such Eligible Party commits to purchase (or, in the case of a Rollover Holdco Member, commits to direct Rollover Holdco to purchase in accordance with Section 6.11(a)) (such portion not to exceed such Eligible Party’s Relative Percentage Share of the Preemptive Securities to be purchased (or, in the case of a Rollover Holdco Member, with respect to which a commitment to direct Rollover Holdco to make a purchase in accordance with Section 6.11(a) has been made) by all Eligible Parties pursuant to this clause (ii) of Section 1.4(c)). Any Eligible Party who shall fail to give the Company an Exercise Notice during the foregoing 15-day period after receipt of a Preemptive Rights Notice shall be deemed to have forfeited such Eligible Party’s right to acquire (or, in the case of a Rollover Holdco Member, such Eligible Party’s right to direct Rollover Holdco to acquire in accordance with Section 6.11(a)) the Preemptive Securities offered pursuant to such Preemptive Rights Notice.
(d) The closing of the issuance or sale of Preemptive Securities within five Business Days following with respect to any meeting of Eligible Party who shall duly give an Exercise Notice shall occur on the Board or governing body of date and at the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approvedlocation specified by the Company. The Issuance Notice shall set forth the material same terms and conditions (including the same price per Preemptive Security) shall apply to all participants in the issuance of all such Preemptive Securities (except that, in the case of a Rollover Holdco Member, such Rollover Holdco Member shall (without limiting its obligation to make the same representations and warranties and agree to the same covenants and agreements as a participant that is not a Rollover Holdco Member) direct Rollover Holdco to purchase such Preemptive Securities pursuant to Section 6.11(a)). In the event that such a closing does not occur within 120 days of the proposed issuance or sale.
(iii) NB shalldelivery of a Preemptive Rights Notice, for a period of 15 Business Days following the receipt of an Issuance Notice (Company shall repeat the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities procedure set forth in such Issuance Notice on the terms Sections 1.4(a), 1.4(b) and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f1.4(c) with respect to the purchase of such Preemptive Securities.
(ive) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold Notwithstanding anything to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth contrary in this Section 2.3(f).
Agreement, no Eligible Party (v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), than a Principal in the event that such Principal’s representation and warranty in the issuance Transaction Agreement that he is an “accredited investor” on the date of this Agreement is accurate) shall have a right to purchase Preemptive Securities pursuant to this Section 1.4 if such purchase will violate any applicable securities laws (whether or not such violation may be cured by PubCo a filing of a registration statement or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listedother special disclosure, or otherwise), the foregoing provisions of this Section 2.3(f) will but allowing for any readily available exemptions that do not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible impose any requirement to provide for the issuance of an alternative security a disclosure document to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but investors); provided, however, that would not require any vote of PubCo’s stockholders. Furthermore, in the event applicable securities laws shall change after the Board determines date of this Agreement so as to provide an exemption therefrom that would be satisfied by providing the Eligible Parties with, in good faith there is a reasonable business need addition to consummate an issuance of Preemptive Securities without first complying with information otherwise required to be provided to them pursuant to this Section 2.3(f)1.4, PubCo financial statements otherwise prepared by the Company in the ordinary course of business pursuant to Section 3.5 or the Subsidiary may issue any other information prepared or sell Preemptive Securities delivered to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days other purchaser of such sale)securities, at PubCo’s or then the Subsidiary’s election, (A) the purchasers of Company shall use commercially reasonable efforts to obtain such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)exemption.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (MSG Entertainment Spinco, Inc.), Limited Liability Company Agreement (MSG Entertainment Spinco, Inc.), Limited Liability Company Agreement (Madison Square Garden Co)
Preemptive Right. (i) Subject to the following sentenceterms and conditions specified in this paragraph (b), PubCo (on its own behalf and on behalf of each of its Subsidiaries) the Company hereby grants to NB Omnipoint a preemptive right to purchase its pro rata portion of any shares of Additional Company Capital Stock that the right Company issues pursuant to any Issuance in accordance with the following provision (the "Preemptive Right").
(1) The Company shall give to Omnipoint written notice by certified mail (the "Preemptive Right Notice") of any proposed Issuance of Additional Company Capital Stock no later than the time such offer is made to other offerees (the "Offer Date"). Omnipoint shall have fifteen (15) days from the closing of any such Issuance to agree to purchase up to its Allotment pro rata portion of any Preemptive Securities that PubCo or any such shares of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted Additional Company Capital Stock issued pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice for the price and on the terms and conditionsconditions as any other purchaser of such shares by giving written notice to the Company and stating therein the quantity of shares (up to a maximum of its pro rata portion) to be purchased. The Company agrees to sell and issue to Omnipoint such shares of Additional Company Capital Stock that Omnipoint elects to purchase on the same terms and conditions as any other purchaser of such shares. For purposes of the Preemptive Right, Omnipoint's pro rata portion of shares of Additional Company Capital Stock issued pursuant to any Issuance is equal to the number of shares of such Additional Company Capital Stock that, when added to the number of shares of Company Common Stock issued or issuable to Omnipoint on a Fully-Diluted Basis prior to such Issuance would result in the Omnipoint Post-Issuance Percentage Interest being equal to the Omnipoint Pre-Issuance Percentage Interest. "Omnipoint Pre-Issuance Percentage Interest" means, with respect to any Issuance, the fraction equal to the number of shares of Company Common Stock issued or issuable to Omnipoint on a Fully-Diluted Basis immediately prior to such Issuance, divided by the total number of shares of Company Common Stock on a Fully-Diluted Basis outstanding immediately prior to such Issuance. "Omnipoint Post-Issuance Percentage Interest" means with respect to any Issuance, the fraction equal to the number of shares of Company Common Stock issued or issuable to Omnipoint on a Fully-Diluted Basis immediately after such Issuance, divided by the total number of shares of Company Common Stock on a Fully-Diluted Basis outstanding immediately after such Issuance. "Fully-Diluted Basis" gives effect, without duplication, to all shares of Company Common Stock outstanding at the time of determination plus all shares of Company Common Stock issuable as if all Additional Company Common Stock had been converted or exercised (in the case of options, warrants or other rights exercisable for shares of Company Common Stock), including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing effect of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive SecuritiesRecapitalization Event.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 2 contracts
Samples: Merger Agreement (Omnipoint Corp \De\), Merger Agreement (East West Communications Inc)
Preemptive Right. (i) Section 5.1 Subject to the following sentenceterms and conditions set forth in this Section 5, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB the Investor has the right to purchase up to its Allotment from the Company an amount of any Preemptive New Securities that PubCo or any of its Subsidiaries may the Company may, from time to time time, propose to issue or and sell up to any Person in a primary issuance or sale. the Investor’s Ownership Percentage (calculated as of the date of delivery of such Notice of Issuance) to the extent such New Securities are actually issued.
Section 5.2 In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip the Company proposes to undertake an issuance of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive New Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo it shall give the Investor written notice (an “Issuance Notice”) of its intention, describing the type of New Securities and the price and terms upon which the Company proposes to NB of any proposed issuance or sale of Preemptive issue such New Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Notice of Issuance”) is approved). The Investor shall have thirty (30) days from the date of delivery of a Notice of Issuance Notice shall set forth to the material terms and conditions Investor to agree to purchase a portion of the proposed issuance or sale.
New Securities up to the Investor’s Ownership Percentage (iii) NB shallcalculated as of the date of delivery of such Notice of Issuance), for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on price and upon the terms and conditions, including the purchase price, set forth specified in the Issuance Notice by delivering of Issuance. On or prior to the expiration of such thirty (30) day period, the Investor shall deliver a written notice to PubCo the Company stating the quantity of New Securities to be purchased by the Investor (a the “Acceptance NoticeInvestor Response”). The delivery of an Acceptance Notice by NB , which written notice shall be a binding on the Company and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, Investor subject only to the closing completion of the Subject Issuance actually occurring. The failure issuance of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive New Securities described in the applicable Issuance Notice on of Issuance.
Section 5.3 The Company shall have 120 days following the earlier of (i) the expiration of the thirty (30) day period described in Section 5.2 and (ii) the delivery of both the Investor Response and the investor response contemplated by the XxxXx XXX to sell or enter into an agreement to sell the New Securities with respect to which the Investor’s right to purchase was not exercised, at a price and upon terms not materially less no more favorable to PubCo or its applicable Subsidiary than those set forth specified in the Issuance NoticeNotice of Issuance. Any If the Company does not sell such issuance New Securities or sale must be closed on or before a deadline (which may be enter into an agreement to sell such New Securities within such 120-day period, then the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary Company shall not thereafter issue or sell any Preemptive New Securities without first again offering such securities New Securities to NB the Investor in accordance with the procedures set forth manner provided in Section 5.2.
Section 5.4 If, at the close of any Business Day following the Original XXX Date, the Investor’s Ownership Percentage is less than 10%, then all obligations of the Company pursuant to this Section 2.3(f)5 shall immediately terminate.
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 2 contracts
Samples: Investor Rights Agreement (R1 RCM Inc. /DE), Investor Rights Agreement (R1 RCM Inc.)
Preemptive Right. (ia) Subject to the following sentence, PubCo (on its own behalf and on behalf of each of its Subsidiaries) The Company hereby grants to NB each Shareholder (each, a “Preemptive Shareholder”) the right to purchase up to its Allotment pro rata portion of any Preemptive Securities new Common Stock (other than any Excluded Securities) (the “New Securities”) that PubCo or any of its Subsidiaries the Company may from time to time propose to issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive SecuritiesPerson.
(iib) PubCo The Company shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of described in subsection (a) above to the Preemptive Securities Shareholders within five (5) Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance, including:
(i) the number of New Securities proposed to be issued and the percentage of the Company’s outstanding Common Stock, on a fully diluted basis, that such issuance or sale.would represent;
(ii) the proposed issuance date, which shall be at least twenty (20) Business Days from the date of the Issuance Notice; and
(iii) NB shall, the proposed purchase price per share.
(c) Each Preemptive Shareholder shall for a period of 15 fifteen (15) Business Days following the receipt of an Issuance Notice (the “Exercise Period”), ) have the right to elect irrevocably to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditionspurchase, including at the purchase price, price set forth in the Issuance Notice Notice, the amount of New Securities equal to the product of (x) the total number of New Securities to be issued by the Company on the issuance date and (y) a fraction determined by dividing (A) the number of shares of Common Stock owned by such Preemptive Shareholder immediately prior to such issuance by (B) the total number of shares of Common Stock outstanding on such date immediately prior to such issuance (the “Preemptive Pro Rata Portion”) by delivering a written notice to PubCo (a “Acceptance Notice”)the Company. The delivery of an Acceptance Notice by NB Such Preemptive Shareholder’s election to purchase New Securities shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securitiesirrevocable.
(ivd) Following No later than five (5) Business Days following the expiration of the Exercise Period, PubCo the Company shall notify each Preemptive Shareholder in writing of the number of New Securities that each Preemptive Shareholder has agreed to purchase (including, for the avoidance of doubt, where such number is zero) (the “Over-Allotment Notice”). Each Preemptive Shareholder exercising its right to purchase its Preemptive Pro Rata Portion of the New Securities in full (an “Exercising Shareholder”) shall have a right of over-allotment such that if any other Preemptive Shareholder fails to exercise its right under this Section 4.01 to purchase its Preemptive Pro Rata Portion of the New Securities (each, a “Non-Exercising Shareholder”), such Exercising Shareholder may purchase all or any portion of such Non-Exercising Shareholder’s allotment (the “Over-Allotment New Securities”) by giving written notice to the Company setting forth the number of Over-Allotment New Securities that such Exercising Shareholder is willing to purchase within five (5) Business Days of receipt of the Over-Allotment Notice (the “Over-Allotment Exercise Period”). Such Exercising Shareholder’s election to purchase Over-Allotment New Securities shall be binding and irrevocable. If more than one Exercising Shareholder elects to exercise its applicable Subsidiary right of over-allotment, each Exercising Shareholder shall have the right to purchase the number of Over-Allotment New Securities it elected to purchase in its written notice; provided, that if the over-allotment New Securities are over-subscribed, each Exercising Shareholder shall purchase its pro rata portion of the available Over-Allotment New Securities based upon the relative Preemptive Pro Rata Portions of the Exercising Shareholders.
(e) The Company shall be free to complete the proposed issuance or sale of Preemptive New Securities described in the applicable Issuance Notice on with respect to any New Securities not elected to be purchased pursuant to Section 4.01(c) and Section 4.01(d) above in accordance with the terms not materially less favorable to PubCo or its applicable Subsidiary than those and conditions set forth in the Issuance Notice. Any Notice (except that the amount of New Securities to be issued or sold by the Company may be reduced) so long as such issuance or sale must be is closed on or before within sixty (60) days after the expiration of the Over-Allotment Exercise Period (subject to the extension of such sixty (60) day period for a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, reasonable time not to exceed 180 ninety (90) days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking extent reasonably necessary to purchase the applicable Preemptive Securities, or obtain any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance NoticeGovernment Approvals). In the event PubCo or its applicable Subsidiary the Company has not sold such Preemptive New Securities at or prior to within such deadlinetime period, PubCo or its applicable Subsidiary the Company shall not thereafter issue or sell any Preemptive New Securities without first again offering such securities to NB the Shareholders in accordance with the procedures set forth in this Section 2.3(f)4.01.
(vf) The closing Upon the consummation of the issuance of any purchase of Preemptive New Securities by NB under in accordance with this Section 2.3(f4.01, the Company shall deliver to each Exercising Shareholder certificates (if any) evidencing the New Securities, which New Securities shall be consummated at such location, dateissued free and clear of any Liens (other than those arising hereunder and those attributable to the actions of the purchasers thereof), and time as specified by PubCothe Company shall so represent and warrant to the purchasers thereof, and further represent and warrant to such purchasers that such New Securities shall be, upon issuance thereof to the Exercising Shareholders and after payment therefor, duly authorized, validly issued, fully paid and non-assessable. Each Exercising Shareholder shall deliver to the Company the purchase price for the New Securities purchased by it by certified or official bank check or wire transfer of PubCo or immediately available funds. Each party to the Subsidiary, on the one hand, purchase and NB, on the other hand, sale of New Securities shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securitiesincluding entering into such additional agreements as may be necessary or appropriate.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 2 contracts
Samples: Shareholder Agreement (Ameris Bancorp), Stock Purchase Agreement (Ameris Bancorp)
Preemptive Right. (i) Subject 6.1 At any time after the date hereof and subject to the following sentence, PubCo if the Company proposes to issue any New Securities for cash (on its own behalf and on behalf of each of its Subsidiaries) grants to NB a “Preemptive Right Offering”), the Purchaser shall have the right (but not the obligation) to purchase up to its Allotment such number of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive New Securities as required to maintain an Ownership Percentage (i) if the Pricing Condition is met with respect to such Preemptive Right Offering, at the lesser of (a) 15% and (b) its Ownership Percentage immediately prior to such Preemptive Right Offering, or (ii) if the Pricing Condition is not met with respect to such Preemptive Right Offering, its Ownership Percentage immediately prior to such Preemptive Right Offering, in each case, on the same terms and conditions that are applicable to such New Securities, at a strip price per share or security equal to the price paid by the purchaser(s) in such issuance of multiple Equity New Securities in combination with fixed proportions(such shares, the rights granted “Preemptive Right Shares”), provided that Purchaser shall not be entitled to acquire Preemptive Right Shares pursuant to this Section 2.3(f) shall be exercisable only as 6.1 to the strip extent that the issuance of all such Preemptive SecuritiesRight Shares to Purchaser would require approval of the stockholders of the Company pursuant to the rules and listing standards of the Principal Market, and in which the Company may in its discretion consummate the proposed issuance of New Securities in such Preemptive Right Offering to other Persons prior to obtaining approval of the stockholders of the Company (subject to compliance with Section 6.3 below). The Purchaser’s right to participate in Preemptive Right Offerings shall terminate following a Termination Event. Notwithstanding the foregoing, the Purchaser may not separately as participate in a Preemptive Right Offering that occurs within six months following a sale or other disposition for value by the Purchaser of any of the shares of Common Stock purchased pursuant to any component of such strip of Preemptive Securitiesthe Common Stock Purchase Agreement.
6.2 In the event that the Company proposes to conduct a Preemptive Right Offering, it shall, at least seven (7) Business Days prior to commencing the Preemptive Right Offering, deliver a written notice to the Purchaser (a “Preemptive Right Notice”), signed by an officer of the Company and (A) stating (i) the Company’s intention to conduct a Preemptive Right Offering; (ii) PubCo shall give written notice (an “Issuance Notice”) the amount and type of New Securities that the Company proposes to NB of any proposed issuance or sale issue, and correspondingly, the number of Preemptive Securities within five Business Days following any meeting of Right Shares that the Board or governing body of the applicable Subsidiary at which any such issuance or sale Purchaser is entitled to purchase, and (a “Subject Issuance”iii) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance, including without limitation, the expected price or pricing methodology of such New Securities (or (x) if such price is not clearly identifiable, such effective price per share as is reasonably determined by the Company in good faith or (y) in the case of issuance or sale.
of restricted stock, the fair market value of such restricted stock as determined by the Company in the ordinary course in connection with such issuance), and (iiiB) NB shallcertifying, for a period based on the Company’s reasonable expectation at such time, as to whether the Pricing Condition will be met in respect of 15 such Preemptive Right Offering. Within five (5) Business Days following the receipt of an Issuance Notice (the “Exercise Period”)Preemptive Right Notice, have the right Purchaser may, by delivery of a written notice of acceptance to the Company, elect to purchase up to its Allotment all, or any portion, of the Preemptive Securities set forth in such Issuance Notice Right Shares that the Purchaser is entitled to purchase on the terms and conditions, including the purchase price, set forth indicated in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Preemptive Right Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice so respond in writing within such five (5) Business Day period by the end of the Exercise Period Purchaser shall constitute a waiver of NB’s its rights under this Section 2.3(f) 6.1 with respect to the purchase of such New Securities but shall not affect its rights with respect to any future issuances of New Securities. Upon the Company’s issuance of any Preemptive SecuritiesRight Shares, such Preemptive Right Shares shall be validly issued, fully paid and nonassessable, duly authorized by all necessary corporate action of the Company. Notwithstanding the requirements of this Section 6.2, in the case of an underwritten public offering, the Company may satisfy its obligations under Section 6 by directing the underwriters for such offering to allocate Preemptive Right Shares to satisfy any amount requested by Purchaser pursuant to such Preemptive Rights Offering.
(iv) Following 6.3 In the expiration event that the Purchaser is not able to acquire its Preemptive Right Shares pursuant to Section 6.1 because such issuance would require the Company to obtain stockholder approval in respect of the Exercise Period, PubCo or its applicable Subsidiary shall be free issuance of such Preemptive Right Shares to complete the proposed issuance or sale Purchaser as a result of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in rules and listing standards of the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubtPrincipal Market, the price at which the Preemptive Securities are sold Company may, in lieu of offering to the prospective purchaser seeking Purchaser the right to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale portion of the Preemptive Securities.
(vi) Notwithstanding Right Shares as set forth above at the foregoing time of such Preemptive Right Offering, comply with the provisions of this Section 2.3(f), in 6.3 by making an offer at such reasonable later time to sell to the event Purchaser the number of Preemptive Right Shares that the issuance by PubCo or any Subsidiary of Preemptive Securities Purchaser would have been entitled to NB would require a vote of PubCo’s stockholders purchase under Section 6.1 if such offering occurred at the same time as the offering is effected (whether because of applicable Law or rules of subject to obtaining the stock exchange on which the Class A Shares are listedrelevant stockholder approval, or otherwiseif required). In such event, the foregoing provisions for all purposes of this Section 2.3(f) will not apply6.3, and instead PubCo and NB will cooperate the number of such Preemptive Right Shares that the Purchaser shall be entitled to purchase under Section 6.1 shall be determined taking into consideration the actual number of New Securities sold in good faith the applicable offering so as to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially achieve the same economic terms effect as if such offer were made prior to the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)offering.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 2 contracts
Samples: Purchaser Rights Agreement (NextDecade Corp.), Purchaser Rights Agreement (TotalEnergies SE)
Preemptive Right. (ia) Subject If the Company proposes to issue (a “Proposed Issuance”) any capital stock of the following sentence, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB the right to purchase up to its Allotment of any Preemptive Securities that PubCo Company or any of its Subsidiaries may from time to time issue securities convertible into, or sell to any Person in a primary issuance exercisable or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportionsexchangeable for, such capital stock (collectively, the rights granted pursuant to this Section 2.3(f“Offered Securities”) shall be exercisable only as to at any time when the strip holders of all such Preemptive Securitiesthe outstanding shares of Class B Common Stock (assuming that all the outstanding shares of Class A Common Stock which are then exchangeable for Class B Common Stock have been so exchanged) are collectively entitled to cast a Table of Contents majority of the Total Voting Power, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo the Company shall give written notice of the Proposed Issuance to the holders of Class B Common Stock (an the “Issuance Offer Notice”) at least 30 days prior to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approvedissuance. The Issuance Notice Such notice shall set forth describe all the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period such Proposed Issuance. Each holder of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), Class B Common Stock shall have the right to elect to purchase up to its Allotment of acquire at the Preemptive Securities set forth in such Issuance Notice same price and on the same terms and conditions, including an additional amount of the Offered Securities so that the percentage of the outstanding Common Stock and Total Voting Power then owned by such holder shall not change as a result of such acquisition and Proposed Issuance; provided, however, that notwithstanding the foregoing (i) such holder may elect to acquire a lesser number of additional Offered Securities as it may determine in its sole discretion and (ii) if the Offered Securities are, or are convertible into or exercisable or exchangeable for, Class A Common Stock, then in lieu thereof such holder shall be entitled to purchase Class B Common Stock or Offered Securities convertible into or exercisable or exchangeable for Class B Common Stock, as applicable. If any holder of Class B Common Stock fails to accept such offer by written notice received by the Company within fifteen (15) days following the date on which such holder received the Offer Notice, the Proposed Issuance may be consummated free and clear of the preemptive right granted to the holders of Class B Common Stock under this Section 4.5. Notwithstanding the foregoing, if the purchase priceprice for any Proposed Issuance is to be paid in whole or in part other than in cash, set forth then the holders of Class B Common Stock may pay the purchase price in cash in an amount per Offered Security equal to the fair market value of the aggregate non-cash consideration so payable, as reasonably determined in good faith by the Board, divided by the total number of Offered Securities to be issued without giving effect to the preemptive right granted by this Section 4.5.
(b) Notwithstanding the foregoing, the preemptive right granted by this Section 4.5 shall not apply to any Proposed Issuance Notice pursuant to any stock option, restricted stock or employee benefit plan of the Company; provided, however, at the end of each month the Company shall give the holders of Class B Common Stock written notice of all such Proposed Issuances during such month (the “Monthly Offer Notice”) and each holder of Class B Common Stock shall have the right, exercisable by delivering a written notice to PubCo the Company (each, a “Acceptance Monthly Exercise Notice”)) within fifteen days after the date on which such holder received the Monthly Offer Notice, to purchase for cash a sufficient number of shares of Class B Common Stock so that the percentage of the outstanding Common Stock and Total Voting Power then owned by such holder shall not change as a result of such acquisition and Proposed Issuances; provided, however, that such holder may elect to acquire a lesser number of such shares of Class B Common Stock as it may determine it its sole discretion. The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the per share purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of for any purchase of Preemptive Securities by NB under this Section 2.3(f) Class B Common Stock pursuant to a Monthly Exercise Notice shall be consummated at such location(i) if the Class A Common Stock is then listed on a national securities exchange or quoted on an automated inter-dealer quotation system, date, and time as specified by PubCo. Each the closing price of PubCo or the Subsidiary, Class A Common Stock on the one hand, and NB, on trading day immediately preceding the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange date on which the Company received the Monthly Exercise Notice or (ii) in all other cases, the fair market value of one share of Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate Common Stock as determined in good faith to by the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)Board.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 2 contracts
Samples: Investor Agreement (Harris Corp /De/), Investor Agreement (Harris Stratex Networks, Inc.)
Preemptive Right. (i) Subject to Section 6.3(c), the following sentence, PubCo (on its own behalf and on behalf of each of its Subsidiaries) Company hereby grants to NB the Class A Members and the Class B Members (other than any Defaulting Member) the right to purchase up to its Allotment of any Preemptive New Securities that PubCo the Company or any of its Subsidiaries may subsidiaries may, from time to time issue or time, propose to sell and issue, pursuant to any Person in a primary issuance or salethe terms of this Section 6.3 (the “Preemptive Right”). In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip that the Company proposes to undertake an issuance of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive New Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo it shall give each Class A Member and Class B Member written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice its intention (the “Exercise PeriodNew Securities Notice”), describing the type of New Securities, the price, and the general terms upon which the Company proposes to issue the same. Each Class A Member and Class B Member shall have twenty (20) days after receipt of the right New Securities Notice to elect agree to purchase up to all or a portion of its Allotment Pro Rata share of the Preemptive New Securities set forth in such Issuance Notice on at the price and upon the terms and conditions, including the purchase price, set forth specified in the Issuance New Securities Notice by delivering a giving written notice to PubCo (a “Acceptance Notice”). The delivery the Company and stating therein the quantity of an Acceptance Notice by NB shall New Securities to be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Noticepurchased. In the event PubCo that any Class A Member or its applicable Subsidiary has not sold Class B Member fails to exercise in part or in full the Preemptive Right within the twenty (20)-day period specified above, the Board shall promptly notify the purchasing Members and the purchasing Members, Pro Rata or as they may otherwise agree, may purchase the remaining New Securities within thirty (30) days after receipt of the New Securities Notice. Each Member who elects to purchase any New Securities shall make payment therefor by wire transfer to the Company within thirty (30) days after receipt of the New Securities Notice, and each such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) payment shall be consummated at such locationconsidered an additional Capital Contribution; provided, datehowever, and time as specified that if any Member has elected to purchase New Securities but fails to make payment therefor by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions thirtieth (including, without limitation, entering into additional agreements30th) as may be reasonably necessary to consummate the purchase and sale day following receipt of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive New Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise)Notice, the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of purchasing Members shall have an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within additional ten (10) Business Days of day period in which to purchase such sale), at PubCo’s unpurchased New Securities Pro Rata or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)as they may otherwise agree.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Ranger Energy Services, Inc.), Limited Liability Company Agreement (Ranger Energy Services, Inc.)
Preemptive Right. (i) Subject to applicable securities laws and except in connection with the following sentenceissuance of any Excluded Shares, PubCo if the Company proposes to issue Shares, Convertible Securities or Share Purchase Rights (on its own behalf collectively, “New Equity Securities”), the holder of this Warrant and on behalf the holder of each of its Subsidiaries) grants to NB any Issued Warrant Shares shall have the right to purchase up to its Allotment of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip Pro Rata Share of all such New Equity Securities. For the purposes of this Section 5.3, each such holder’s “Preemptive Pro Rata Share” shall be the percentage that the number of Warrant Shares held by such holder represents of all Shares on a fully diluted basis immediately prior to the issuance of the New Equity Securities. If the Company proposes to issue any New Equity Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo it shall give the holder of this Warrant and the holder of any Issued Warrant Shares not less than twenty (20) days’ prior written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive its intention, describing the New Equity Securities within five Business Days following any meeting of and the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material price and other terms and conditions of upon which the proposed issuance or sale.
Company proposes to issue the same. Each such holder shall have fifteen (iii15) NB shall, for a period of 15 Business Days days following the receipt of an Issuance Notice (the “Exercise Period”), have the right such notice to elect to purchase up to its Allotment such holder’s Preemptive Pro Rata Share of the Preemptive New Equity Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice of its election to PubCo (a “Acceptance Notice”)the Company within the time period. The delivery Notwithstanding the foregoing, the Company shall not be required to offer or sell such New Equity Securities to any holder who would cause the Company to be in violation of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB applicable securities laws. To the extent any such holder does not elect to purchase its Preemptive Pro Rata Share of all New Equity Securities, the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period Company shall constitute a waiver of NB’s rights under this Section 2.3(fhave one hundred eighty (180) with respect to the purchase of such Preemptive Securities.
(iv) Following days following the expiration of the Exercise Periodnotice provided above to sell the New Equity Securities first, PubCo to electing holders and then, to any other third parties, at a price and upon general terms and conditions not materially more favorable to the purchasers thereof than specified in the Company’s notice to the holders (provided that the sale of all New Equity Securities to a holder or its applicable Subsidiary any third party shall be free to complete on the proposed issuance or sale of Preemptive Securities described same terms and conditions as those specified in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in notice). If the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary Company has not sold such Preemptive New Equity Securities at or prior to within such deadlineone hundred eighty (180) day period, PubCo or its applicable Subsidiary the Company shall not thereafter issue or sell any Preemptive Securities New Equity Securities, without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), holders in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)manner provided above.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 2 contracts
Samples: Warrant Agreement (Post Road Special Opportunity Fund II LP), Warrant Agreement (Digerati Technologies, Inc.)
Preemptive Right. Section 5.1 At any time the Company proposes to issue any Securities or transfer any Securities that have been repurchased from the open market and held under the Company’s brokerage account or otherwise held under the Company’s name, including any Common Stock (the “New Securities”), other than: (i) Subject to the following sentence, PubCo (on its own behalf New Issuance Exceptions and on behalf of each of its Subsidiaries) grants to NB the right to purchase up to its Allotment of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo the issuance of Common Stock on a pro rata basis in connection with the payment of any share dividends, the Company shall give written notice notify the Investor in writing of such proposal (an “Issuance Issue Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved). The Issuance Issue Notice shall set forth specify the number and type of New Securities to be offered by the Company and all material terms and conditions of the proposed issuance offer (including the proposed price or salerange of prices) per New Security.
Section 5.2 The Investor shall have the right to purchase, or to purchase through an Affiliate, up to a number of New Securities so as to enable the Investor to beneficially hold, after the issue of the New Securities which are the subject to the Issue Notice, a pro rata portion of the New Securities equal to the percentage of the issued and outstanding Common Stock then beneficially owned by the Investor prior to the issuance of the New Securities upon the same terms and conditions set forth in the Issue Notice, by giving written notice to the Company of the exercise of this right within thirty (iii30) NB shall, for a period days of 15 Business Days following the Investor’s receipt of an Issuance the Issue Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Election Notice”). The delivery of an Acceptance Notice If such notice is not given by NB the Investor within such thirty (30) days thereof, the Investor shall be a binding and irrevocable offer by NB deemed to purchase have elected not to exercise its preemptive rights under this ARTICLE V with respect to the Preemptive Securities issuance described in that specific Issue Notice.
Section 5.3 If the Acceptance Notice for cashInvestor (or its Affiliate) exercises its preemptive rights under this ARTICLE V, subject only to the closing of the Subject Issuance actually occurringpurchase of the New Securities with respect to which such right has been exercised (the “Preemptive Rights Closing Date”) shall take place at the time of the closing of the issuance or transfer of the New Securities, which may not be earlier than ten (10) Trading Days after the giving of the Election Notice, provided that the Preemptive Rights Closing Date may be extended for a maximum of sixty (60) Trading Days to the extent required to comply with applicable Laws (including receipt of any required regulatory approvals). The failure of NB to deliver an Acceptance Notice by Company and the end of the Exercise Period shall constitute a waiver of NB’s Investor (or its Affiliate exercising preemptive rights under this ARTICLE V) will use commercially reasonable efforts to secure any required regulatory or shareholder approvals or other consents in a timely manner, and to comply with any applicable Law necessary in connection with the offer, sale and purchase of, such New Securities.
Section 2.3(f5.4 In the event that the Investor (or its Affiliate) with respect fails to exercise its preemptive rights under this ARTICLE V within such thirty (30) days period, or in the event that the Investor fails to consummate the purchase of such Preemptive Securities.
New Securities within the specified period of time pursuant to Section 5.3 (iv) Following the expiration other than as a result of breach or fault of the Exercise PeriodCompany), PubCo the Company shall thereafter be entitled to issue and sell within sixty (60) Trading Days the New Securities not elected to be purchased by the Investor (or its applicable Subsidiary shall be free Affiliate) pursuant its preemptive rights to complete the proposed issuance or sale of Preemptive Securities described this ARTICLE V, at a price no less than that specified in the applicable Issuance Notice on Issue Notice, and otherwise upon terms not materially less and conditions no more favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any aggregate to any purchaser of such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth New Securities than were specified in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Issue Notice. In the event PubCo or its applicable Subsidiary the Company has not issued and sold such Preemptive New Securities at or prior to within such deadlinesixty (60) Trading Day period, PubCo or its applicable Subsidiary the Company shall not thereafter offer, issue or sell any Preemptive such New Securities without first again offering such securities New Securities to NB the Investor in accordance with the procedures set forth manner provided in this ARTICLE V.
Section 2.3(f).
(v) The closing 5.5 In the case of any purchase the offering of Preemptive New Securities by NB under this Section 2.3(f) for a consideration in whole or in part other than cash, including securities acquired in exchange therefor, the consideration other than cash shall be consummated at such location, date, and time deemed to be the fair value thereof as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate determined in good faith to by the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms Board; provided, however, that such fair value as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event determined by the Board determines in good faith there is a reasonable business need to consummate an issuance shall not exceed the aggregate market price of Preemptive the New Securities without first complying with this Section 2.3(f), PubCo or being offered as of the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with date the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days Board authorizes the offering of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)New Securities.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 2 contracts
Samples: Investor Rights Agreement (Weichai America Corp.), Investor Rights Agreement (Power Solutions International, Inc.)
Preemptive Right. 7.1 If the Corporation wishes to issue new Shares, subscription rights or other securities (ithe "Securities"), it shall advise all the Shareholders in writing of the terms, prices and conditions of said issue (the "Subscription Offer") Subject at least fifteen (15) days before the date of this issue. The Shareholders shall then have the right, within this fifteen (15) day deadline, to subscribe to and purchase the following sentence, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB the right to purchase up to its Allotment of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in shall thus be issued on a primary issuance or sale. Proportional Basis.
7.2 In the event PubCo that a Shareholder to whom the Subscription Offer has been made does not advise the Corporation in writing, within the prescribed deadline, of its acceptance or a Subsidiary offers refusal, it shall be deemed to have refused it.
7.3 In the event that one or sells Preemptive more of the Shareholders does not take advantage of the Subscription Offer in whole or in part, it shall accrue in favour of the other Shareholders who may exercise their subscription right to the Securities as a strip (the "Additional Subscription Offer"). They shall then have an additional deadline of multiple Equity Securities in combination with fixed proportions, fifteen (15) days following the rights granted pursuant notice given by the Corporation to this Section 2.3(f) shall be exercisable only as effect, to the strip take advantage of all such Preemptive Securitiesthis accrual, and not separately as to any component by means of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB this effect addressed to the Corporation, failing which they shall be a binding and irrevocable offer by NB deemed to purchase have refused the Preemptive Securities described in the Acceptance Notice for cash, subject only Additional Subscription Offer.
7.4 If these other Shareholders do not wish to the closing take advantage of the Subject Issuance actually occurring. The failure of NB Additional Subscription Offer, the Corporation may issue the unsubscribed Securities to deliver an Acceptance Notice by the end persons who are not shareholders of the Exercise Period Corporation, but at the same prices and conditions (including payment of the price in cash).
7.5 If the Securities that the Corporation thus intends to issue have not been issued within a ninety (90) day deadline, calculated from the date of the Subscription Offer, the Corporation shall constitute a waiver again and on each occasion comply with the provisions of NB’s rights under this Section 2.3(f) the foregoing Articles 7.1 to 7.4, before proceeding with respect to the purchase any issue of such Preemptive Securities.
(iv) Following the expiration 7.6 The Corporation shall not be bound to issue fractions of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), it being understood that in the event that it proposes to effect a new issue, the issuance number of Securities that it proposes to issue shall permit the subscription by PubCo or any Subsidiary each Shareholder to a sufficient number of Preemptive Securities to NB would require a vote permit it to maintain the Proportional Basis of PubCo’s stockholders (whether because Shares that it holds at the time of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)said issue.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Samples: Shareholders' Agreement (McKenzie Bay International)
Preemptive Right. Notwithstanding RWC's LLC Agreement (ias defined in the Assignment Agreement), upon the assignment of the Membership Interests (as defined in the Assignment Agreement) Subject to the following sentenceLender pursuant to SECTION 3(c)(iv), PubCo (on its own behalf and on behalf of each of its Subsidiaries) RWC grants to NB Lender the preemptive right to purchase up to its Allotment Lender's Proportionate Interest (defined below) of any Preemptive Securities Membership Interests that PubCo or any of its Subsidiaries may RWC may, from time to time issue or time, propose to sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportionsother person; provided, the rights granted pursuant to this Section 2.3(f) however, that Lender shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to have any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the preemptive right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase distribution by, or exchange offer of, RWC of its securities to all of its members of any Membership Interests that is made pro rata, based on the percentage of the outstanding Membership Interests owned by each Assignor (as defined in the Assignment Agreement) and Lender. As used in this Agreement, "PROPORTIONATE INTEREST" means the quotient of the Membership Interests owned by Lender, divided by the total Membership Interests issued and outstanding. If RWC proposes to sell securities in a transaction subject to the preemptive right granted in this Section, then RWC shall give Lender written notice (a "PREEMPTIVE RIGHT NOTICE") of RWC's intention, describing the type of securities to be sold and the price and general terms upon which RWC proposes to sell such securities. If the price specified in the Preemptive Right Notice is payable in whole or in part in property (including without limitation the securities of any other issuer) other than cash, then Lender shall pay cash in lieu of such Preemptive Securities.
(iv) Following property, at the expiration fair market value of the Exercise Period, PubCo or its applicable Subsidiary such property determined in good faith by Assignors and Lender. Lender shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 have 15 days from the date the Issuance Preemptive Right Notice was given; and is given to notify RWC whether Lender elects to purchase all or any portion of Lender's Proportionate Interest of such securities for the avoidance of doubt, identical price and upon the price at which same general terms specified in the Preemptive Securities are sold Right Notice. Such notice (the "ELECTION NOTICE") shall be in writing and shall state the quantity of such securities to be so purchased. If Lender does not timely deliver an Election Notice, it shall be deemed to have waived its preemptive rights with respect to such sale, provided that RWC consummates the prospective purchaser seeking to purchase sale within 180 days after the applicable Preemptive Securities, or any other purchaser, must be expiration of such 15 day period at least a price equal to or higher greater than the purchase price described specified in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior Right Notice given to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities Lender by NB RWC under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive SecuritiesSection.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Preemptive Right. So long as SUBSCRIBER and its affiliates beneficially own at least 20% of the Shares sold to SUBSCRIBER under this Subscription Agreement and the shares of common stock that were purchased under the Subscription Agreement dated May 22, 2000 and may be acquired under the Purchase Option dated May 22, 2000 (i"Purchase Option"), if ISSUER elects to sell, for cash, New Securities (as hereinafter defined) Subject at any time prior to the following sentencefour year anniversary date of this Subscription Agreement, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB SUBSCRIBER will have the right to purchase from ISSUER on the same terms as the proposed sale, up to that number of securities being offered as will maintain its Allotment then percentage ownership of ISSUER's Common Stock calculated on a fully diluted basis, but based solely on the Shares purchased hereunder and under the Subscription Agreement dated May 22, 2000 and underlying the Purchase Option and not including any Preemptive Securities that PubCo or any additional shares of its Subsidiaries Common Stock which may from time be owned by SUBSCRIBER. ISSUER shall give notice to time issue or sell the SUBSCRIBER in writing ("ISSUER Notice") at least ten business days prior to any Person in a primary issuance or the proposed closing date of such proposed sale. In The ISSUER Notice shall describe in reasonable detail the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportionsproposed sale including, without limitation, the rights granted pursuant nature and number of securities to this Section 2.3(f) be sold, the nature of such sale, the consideration to be paid, and the name and address of the prospective purchasers ("Buyer"). Upon the giving of the ISSUER Notice, SUBSCRIBER shall be have the right, but not the obligation, exercisable only as by written notice to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities ISSUER within five Business Days following any meeting business days after receipt of the Board or governing body ISSUER Notice, to indicate to ISSUER its desire to purchase its permitted number of securities being sold in the applicable Subsidiary at which any such issuance or proposed sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth on the material same terms and conditions of as ISSUER is selling the securities in the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to SUBSCRIBER will purchase the Preemptive Securities described in securities to be offered and purchased under this section at the Acceptance Notice for cash, subject only to same time as the closing of the Subject Issuance actually occurring. The failure of NB proposed sale, and if SUBSCRIBER does not elect to deliver an Acceptance Notice by the end purchase any of the Exercise Period shall constitute a waiver shares of NB’s rights under common stock within said five days, then SUBSRIBER will be deemed to have waived its right to buy such offered shares. For purposes of this Section 2.3(f8, "New Securities" means any shares of capital stock of the ISSUER, including Common Stock and preferred stock, whether now authorized or not, and rights, options or warrants to purchase said shares of Common Stock or preferred stock of the ISSUER, and securities of any type whatsoever that are, or may become, convertible into said shares of Common Stock or preferred stock; provided, however, "New Securities" does not include (i) with respect the shares of Common Stock issuable upon exercise of the Purchase Option as such term is defined under the Subscription Agreement dated May 22, 2000, (ii) securities issuable upon exercise or conversion of securities outstanding on the date hereof, (iii) securities offered to the purchase of such Preemptive Securities.
public generally pursuant to a registration statement under the Securities Act, (iv) Following securities issued to employees, officers or directors of, or consultants to, the expiration ISSUER, or issued or issuable to banks or other institutional lenders or lessors in connection with capital asset leases or borrowings for the acquisition of capital assets, landlords, or other providers of goods and services to the ISSUER, in each case, if pursuant to any arrangement approved by the board of directors of the Exercise PeriodISSUER (including securities issued upon exercise or conversion of any such securities), PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certainv) securities issued for closing such issuance or sale set forth in the applicable Issuance Noticecash, not to exceed 180 $500,000, not including the Parker family investment, in any private placement by ISSUER on terxx xxt more favorable then those to the SUBSCRIBER, subject to an agreement entered into within ten business days from after the date of this Subscription Agreement (including securities issued upon exercise or conversion of any such securities), or (vi) any issuance of capital stock of the Issuance Notice was given; and for ISSUER upon the avoidance exercise or conversion of doubtderivative securities, the price at issuance of which triggered the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures pre-emptive rights set forth in this Section 2.3(f).
(v) The closing of any purchase of 8. This provision will be deemed to supersede Section 8 "Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale Right" of the Preemptive SecuritiesSubscription Agreement dated May 22, 2000.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Preemptive Right. If at any time the Company desires to issue or sell any shares of its capital stock or securities convertible, exercisable or exchangeable for the Company's capital stock (iother than Non-Preemptive Shares) Subject (the "ADDITIONAL SHARES") to any Person, the Company shall give a written notice (the "ISSUANCE NOTICE") to the following sentencePurchasers setting forth the proposed terms of the sale of such Additional Shares and the quantity of Additional Shares to be issued, PubCo the proposed issuance date and the price at which such Additional Shares shall be issued. Each of the Purchasers shall have the option to purchase the number of Additional Shares necessary to maintain such Purchaser's percentage of issued and outstanding shares of the Company at the time of the Issuance Notice, which option may be exercised by giving written notice to the Company (on its own behalf and on behalf the "RESPONSE NOTICE") within 14 days of each the Issuance Notice that contains an agreement to purchase all or any portion of its Subsidiaries) grants the Additional Shares to NB which such Purchaser is entitled to purchase. Failure by a Purchaser to give the Response Notice to the Company within such 14-day period shall be deemed to be a rejection of such option. For a period of 180 days after any Issuance Notice, the Company shall have the right to purchase up to its Allotment of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in (a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f"THIRD PARTY BUYER") shall be exercisable only as up to the strip number of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth Additional Shares specified in the Issuance Notice by delivering a written notice less the number of Additional Shares subscribed for pursuant to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding duly tendered Response Notices at the same price and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on other terms not materially less favorable to PubCo the Company than as specified in the Issuance Notice. At the time of the closing of the sale of the Additional Shares to one or its applicable Subsidiary than those more Third Party Buyers, the Company shall sell to such Purchaser and such Purchaser shall purchase the Additional Shares that such Purchaser agreed to purchase in the Response Notice, at the price and on the terms set forth in the Issuance Notice. Any If at the end of the 180th day following any Issuance Notice, the Company has not completed the issuance described in the Issuance Notice, each Purchaser that has provided a Response Notice shall be released from its obligations thereunder. If the Company desires to issue or sell Additional Shares, (i) after such issuance 180-day period, (ii) except in connection with an Initial Public Offering, on terms materially less favorable to the Company than as specified in the Issuance Notice, (iii) except in connection with an Initial Public Offering, at a price less than the price specified in the Issuance Notice or sale (iv) except in connection with an Initial Public Offering, in a quantity greater than as specified in the Issuance Notice, the Company must be closed on or before a deadline (which may be again comply with this Section 5(g). If the occurrence Company desires to take any of an event or date certain) for closing such issuance or sale the actions set forth in clauses (ii), (iii) or (iv) of the applicable Issuance Noticeprior sentence in connection with an Initial Public Offering, not to exceed 180 days each Purchaser, at its option, shall be released from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance its obligations under its Response Notice. In The rights and obligations of the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior parties pursuant to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f5(g) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfiedclosing of an Initial Public Offering.
Appears in 1 contract
Samples: Series Cc Purchase Agreement (Commvault Systems Inc)
Preemptive Right. If at any time the Company desires to issue or sell any shares of its capital stock or securities convertible, exercisable or exchangeable for the Company's capital stock (iother than Non-Preemptive Shares) Subject (the "ADDITIONAL SHARES") to any Person, the Company shall give a written notice (the "ISSUANCE NOTICE") to the following sentencePurchasers setting forth the proposed terms of the sale of such Additional Shares and the quantity of Additional Shares to be issued, PubCo the proposed issuance date and the price at which such Additional Shares shall be issued. Each of the Purchasers shall have the option to purchase the number of Additional Shares necessary to maintain such Purchaser's percentage of issued and outstanding shares of the Company at the time of the Issuance Notice, which option may be exercised by giving written notice to the Company (on its own behalf and on behalf the "RESPONSE NOTICE") within 14 days of each the Issuance Notice that contains an agreement to purchase all or any portion of its Subsidiaries) grants the Additional Shares to NB which such Purchaser is entitled to purchase. Failure by a Purchaser to give the Response Notice to the Company within such 14-day period shall be deemed to be a rejection of such option. For a period of 180 days after any Issuance Notice, the Company shall have the right to purchase up to its Allotment of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in (a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f"THIRD PARTY BUYER") shall be exercisable only as up to the strip number of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth Additional Shares specified in the Issuance Notice by delivering a written notice less the number of Additional Shares subscribed for pursuant to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding duly tendered Response Notices at the same price and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on other terms not materially less favorable to PubCo the Company than as specified in the Issuance Notice. At the time of the closing of the sale of the Additional Shares to one or its applicable Subsidiary than those more Third Party Buyers, the Company shall sell to such Purchaser and such Purchaser shall purchase the Additional Shares that such Purchaser agreed to purchase in the Response Notice, at the price and on the terms set forth in the Issuance Notice. Any If at the end of the 180th day following any Issuance Notice, the Company has not completed the -12- <PAGE> issuance described in the Issuance Notice, each Purchaser that has provided a Response Notice shall be released from its obligations thereunder. If the Company desires to issue or sell Additional Shares, (i) after such issuance 180-day period, (ii) except in connection with an Initial Public Offering, on terms materially less favorable to the Company than as specified in the Issuance Notice, (iii) except in connection with an Initial Public Offering, at a price less than the price specified in the Issuance Notice or sale (iv) except in connection with an Initial Public Offering, in a quantity greater than as specified in the Issuance Notice, the Company must be closed on or before a deadline (which may be again comply with this SECTION 5(E). If the occurrence Company desires to take any of an event or date certain) for closing such issuance or sale the actions set forth in clauses (ii), (iii) or (iv) of the applicable Issuance Noticeprior sentence in connection with an Initial Public Offering, not to exceed 180 days each Purchaser, at its option, shall be released from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance its obligations under its Response Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, rights and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale obligations of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of parties pursuant to this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(fSECTION 5(E) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfiedclosing of an Initial Public Offering.
Appears in 1 contract
Samples: Series Cc Purchase Agreement
Preemptive Right. (i) Subject to For so long as any of the following sentencePurchasers is the holder of record of any Securities, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB such Purchaser shall have the right to purchase up to its Allotment a pro rata portion of any Preemptive New Equity Securities that PubCo or any of its Subsidiaries may which the Company, from time to time issue time, proposes to sell or sell issue. Each such Purchaser's pro rata portion, for purposes of this Section 6.13, is the ratio of the number of Securities which such Purchaser then owns to any Person in a primary issuance or salethe total number of shares of Common Stock of the Company then outstanding. In the event PubCo that the Company proposes to undertake an issuance or sale of New Equity Securities, the Company shall furnish to each Purchaser which is a Subsidiary offers or sells Preemptive holder of record of Securities as a strip written notice of multiple such proposal, describing the type of New Equity Securities in combination with fixed proportionsand the price and the terms upon which the Company proposes to issue or sell the same. For a period of fifteen (15) Business Days following the delivery of such notice by the Company, the Company shall be deemed to have irrevocably offered to sell to each Purchaser which is a holder of Securities such Purchaser's pro rata share of such New Equity Securities for the price and upon the terms specified in the notice. Each such Purchaser may exercise its purchase rights granted hereunder by giving written notice to the Company and stating therein the quantity of New Equity Securities to be purchased. In the event any Purchaser fails to exercise in full such Purchaser's purchase right pursuant to this Section 2.3(f6.13 within such fifteen (15) Business Day period, the Company shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
have ninety (ii90) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of thereafter to sell the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive New Equity Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the which such purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms right was not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each caseexercised, at a purchase price no more, and on upon terms no less more favorable to NB, the purchaser thereof than those applicable specified in the Company's notice given pursuant to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f6.13. This Section 6.13 shall be solely for the benefit of the Purchasers and their Affiliates (but not any transferee thereof other than Affiliates of the Purchasers).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Samples: Securities Purchase Agreement (Recovery Engineering Inc)
Preemptive Right. (i) Subject to the following sentence, PubCo (on its own behalf and on behalf of each of its Subsidiaries) The Company hereby grants to NB each holder of Notes, shares of Common Stock issuable upon conversion of the Notes, or Amended Purchased Shares a preemptive right to purchase up to its Allotment of any Preemptive New Securities (as defined in the Notes) that PubCo or any of its Subsidiaries may the Company may, from time to time, propose to issue and sell; provided, however, that at the time issue of any such offer or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities sale holder shall qualify as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”accredited investor” as that term is defined in Rule 501(a) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board 1933 Act. Such preemptive right shall allow each such holder to purchase its pro rata amount or governing body number of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive New Securities proposed to be issued but that would (based on the Common Stock equivalents held by or issuable to all holders of Notes, shares of Common Stock issuable upon conversion of the Notes or Amended Purchased Shares). In the event any other holder of a right to purchase New Securities does not require elect to exercise its right so to purchase, the Company shall give all electing holders notice thereof and electing holders shall have the right to purchase such unpurchased New Securities on a pro rata basis until all of the New Securities are purchased, or until no other holder of a right to purchase New Securities desires to purchase any vote of PubCo’s stockholders. Furthermoreadditional New Securities, in which case the event Company may sell such unpurchased New Securities to prospective purchasers on the Board determines terms described in good faith there is the notice of proposed issuance for a reasonable business need period of seventy-five (75) days, but thereafter may sell additional New Securities only after delivering another notice as described herein. The preemptive right granted hereunder shall terminate if unexercised within fifteen (15) Business Days after receipt of notice from the Company. Notwithstanding anything contained herein to consummate the contrary, no such notice shall contain any material non-public information. If the Company proposes to undertake an issuance of Preemptive Securities without first complying with New Securities, it shall give each holder of this Section 2.3(f)preemptive right written notice of its intention, PubCo or describing the Subsidiary may class and number of securities it intends to issue or sell Preemptive Securities to one or more Persons without first complying with as New Securities, the purchase price therefor (which shall be payable solely in cash) and the terms upon which the Company proposes to issue the same. Each holder of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale the preemptive right shall have a reasonable time (and in any event within ten not to be less than fifteen (1015) Business Days from the date of such sale), at PubCo’s its receipt of the notice) to elect to purchase all or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the any portion of such purchased Preemptive New Securities that equals NB’s applicable Allotment or (B) PubCo or for the Subsidiary shall offer purchase price and upon the terms specified in the notice by giving written notice to issue an incremental amount the Company, stating therein the quantity of Preemptive New Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)be purchased.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Preemptive Right. (i) Subject Article 14.1 Each of the Parties having ownership of the Joint Venture hereby grants to the following sentence, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB other Parties owning an interest in the Joint Venture the right of first refusal to purchase up to acquire its Allotment respective percentage ownership of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or salethe Joint Venture. In the event PubCo that any of the Parties (a “Selling Party”) receives an offer to purchase all or a Subsidiary offers or sells Preemptive Securities as a strip any portion of multiple Equity Securities its percentage ownership of the Joint Venture (the “Offered Interests”), then the Selling Party shall immediately notify the other Parties in combination with fixed proportions, writing (the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of offer and disclose the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions thereof, including but not limited to the offered price (the “Offered Price”). The other Parties may, but shall not be obligated to, purchase its pro rata shares of the proposed issuance or sale.
Offered Interests at the Offered Price. Within sixty (iii60) NB shall, for a period days of 15 Business Days following the receipt of an Issuance the Notice (the “Exercise PeriodExpiration Date”), have each of the Parties desiring to purchase its pro rata portion of the Offered Interests shall notify the Selling Party of its intention to exercise this right of first refusal. If any of the Parties elect to exercise its right of first refusal, then the closing shall occur not later than ninety (90) days after the Expiration Date. If less than all of the Parties elect to exercise the right to elect of first refusal, the exercising Parties shall be entitled to purchase up to its Allotment their pro rata portion of the Preemptive Securities set forth in non-exercising Parties. If none of the Parties elects to exercise its right of first refusal or all Parties fail to respond before the Expiration date, then the Selling Party may sell the Offered Interests at the Offered Price to any third party. If such Issuance Notice on sale does not occur within ninety (90) days after the terms and conditionsExpiration Date, including then the purchase price, set forth in Selling Party must again offer the Issuance Notice by delivering right of first refusal to all Parties prior to any sale.
Article 15.1 Any amendment of this agreement shall come into force only after a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice amendment agreement has been signed by the end of Sino Parties and TNRO, and approved by the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securitiesoriginal examination and approval authority.
(iv) Following the expiration Article 15.2 In case of the Exercise Period, PubCo or its applicable Subsidiary shall be free a substantive inability by either Party to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with fulfill the terms of Section 2.3(f)this agreement, so long asor a decision to not continue operations due to heavy losses as a result of Force Majeure, as promptly as is reasonably practicable following the Joint Venture shall be terminated before the date of expiration, upon such sale (and in any event within ten (10) Business Days decision being unanimously agreed upon by the Board of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no moreDirectors, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)approved by the original examination and approval authority.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Samples: Joint Venture Contract (Terra Nostra Resources Corp.)
Preemptive Right. If at any time the Company desires to issue or sell any shares (ithe "ADDITIONAL SHARES") Subject of its capital stock that entitle the holder thereof to voting rights (other than Non-Preemptive Shares) to any Person, the Company shall give a written notice (the "ISSUANCE NOTICE") to the following Purchasers setting forth the proposed terms of such Additional Shares and the quantity of Additional Shares to be issued, the issuance date and the price at which such Additional Shares shall be issued. Each of the Purchasers shall have the option to purchase the number of Additional Shares necessary to maintain such Purchaser's percentage of issued and outstanding voting shares of the Company at the time of the Issuance Notice, which option may be exercised by giving written notice to the Company (the "RESPONSE NOTICE") within 14 days of the Issuance Notice that contains an unconditional agreement to purchase all (and not less than all) of the Additional Shares to which such Purchaser is entitled to purchase. Failure by a Purchaser to give the Response Notice to the Company within such 14-day period shall be deemed to be a rejection of such option. At the option of the Company, within 14 days of Company's receipt of the Response Notice or at the time of the closing of the sale of Additional Shares to any Persons pursuant to the next sentence, PubCo (on its own behalf the Company shall sell to such Purchaser and such Purchaser shall purchase the Additional Shares that such Purchaser agreed to purchase in the Response Notice, at the price and on behalf the terms set forth in the Issuance Notice. For a period of each of its Subsidiaries) grants to NB 270 days after any Issuance Notice, the Company shall have the right to purchase up to its Allotment of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as up to the strip number of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth Additional Shares specified in the Issuance Notice by delivering less the number of Additional Shares pursuant to duly tendered Response Notices at a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding price and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary the Company than those set forth as specified in the Issuance Notice. Any If the Company desires to issue or sell Additional Shares, (i) after such issuance or sale must be closed 270-day period, (ii) on or before a deadline (which may be terms materially less favorable to the occurrence of an event or date certain) for closing such issuance or sale set forth Company than as specified in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for or (iii) in a quantity greater than as specified in the avoidance of doubtprevious sentence, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, Company must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying comply with this Section 2.3(f5(g), PubCo or . The rights and obligations of the Subsidiary may issue or sell Preemptive Securities parties pursuant to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f5(g) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfiedclosing of an Initial Public Offering.
Appears in 1 contract
Preemptive Right. (i) Subject 4.1. Other than Shares to be issued in any public offering or as a consideration for the payment of any assets or shares of another Person acquired by the Company and Shares issued to Caisse or its Affiliates or transferees upon the exercise of the Warrants or conversion of its indebtedness, any new Shares to be issued by the Company shall first be offered by the Company to the following sentenceCaisse which shall then have the prior right to acquire same, PubCo upon the terms and conditions set forth in this Section.
4.2. Any proposed issue of Shares, including the issue price and other terms and conditions thereof, shall be disclosed in writing by the Company to the Caisse (on the "Initial Notice").
4.3. The Caisse may then exercise its own behalf and on behalf of each of its Subsidiaries) grants to NB the right to purchase up a pro rata portion of the Shares to its Allotment be issued at their issue price and upon the terms and conditions of any Preemptive Securities that PubCo or any their issuance by means of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as written notice to the strip of all such Preemptive SecuritiesCompany (the "Acceptance Notice"), and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five 20 Business Days following any meeting receipt of the Board or governing body of Initial Notice, failing which the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approvedCaisse shall be irrevocably deemed to have refused to purchase the Shares so to be issued. The Issuance Acceptance Notice shall set forth the material terms and conditions number of shares the proposed issuance or saleCaisse wishes to purchase.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice4.4. In the event PubCo of actual or its applicable Subsidiary has not sold such Preemptive Securities at deemed refusal by the Shareholders to purchase all or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale part of the Preemptive Securities.
(vi) Notwithstanding Shares to be issued pursuant to the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise)provisions, the foregoing provisions Company may issue such remaining Shares to any Person within the period of this Section 2.3(f) will not apply90 days following the date of their last actual or deemed refusal, at the same price and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with upon substantially the same economic terms as and conditions offered to the Preemptive Securities proposed Caisse, failing which if the Company still wishes to issue such Shares, it shall be issued but required to re-offer them to the Caisse in the manner set forth herein.
4.5. In calculating Caisse's pro rata portion in section 4.3 herein the number of Shares that would not require any vote of PubCo’s stockholders. Furthermore, in be held by the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate Caisse upon the first exercise of the warrants that may be exercisable at the date that of the NB First Ownership Threshold is no longer satisfiedInitial Notice shall be compared to the total number of Shares of common stock outstanding or issuable pursuant to options, warrants, rights or securities convertible into or exchangeable or exercisable for common stock of the Company on the date of the Initial Notice.
Appears in 1 contract
Samples: Agreement (Hockey Co)
Preemptive Right. (i) Subject At any time prior to the following sentenceconsummation of a Qualified IPO, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants if the Company proposes to NB the right to purchase up to its Allotment of sell any Preemptive Equity Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in a primary transaction or transactions other than (i) in connection with a Qualified IPO, (ii) Equity Securities issued in exchange for non-cash consideration in an acquisition of a business or assets from a Person not an Affiliate of any Unitholder, (iii) an issuance of Class A Units in accordance with the terms of this Agreement (including, for the avoidance of doubt, pursuant to Section 4.2) or sale(iv) the issuance of Class B Units or options to purchase Membership Interests or other Equity Securities pursuant to incentive equity compensation plans approved by the Board of Managers and subject to the approvals set forth in Section 6.6, any Class A Unitholder who is an “accredited investor” as defined in Rule 501(a) under the Securities Act shall have the right to purchase directly or through any Affiliate, a pro rata amount (based on such Class A Unitholder’s Sharing Percentage) of such Equity Securities. Any participation pursuant to this Section 9.4 shall be on the same price, terms and conditions as applied to all offerees in the respective offering. In the event PubCo of a proposed transaction or a Subsidiary offers or sells Preemptive Securities transactions, as a strip the case may be, that would give rise to preemptive rights of multiple Equity Securities in combination with fixed proportionsthe Class A Unitholders, the rights granted pursuant to this Section 2.3(f) Company shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written provide notice (an the “Issuance Initial Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five such parties no later than twenty (20) Business Days following prior to the expected consummation of such transaction or transactions. Each party possessing preemptive rights hereunder shall provide notice of its election to exercise such rights within thirty (30) days after delivery of such Initial Notice from the Company. (Each party electing to exercise its preemptive right in such instance is referred to as an “Electing Party”). The failure of a Class A Unitholder to respond to the Initial Notice and affirmatively exercise its preemptive right in accordance with the terms of this Agreement shall be deemed an election not to exercise its preemptive right in connection with such proposed transaction or transactions, but shall not affect such Class A Unitholder’s preemptive right in relation to any meeting of future transaction or transactions in accordance with this Section 9.4. If a Class A Unitholder shall elect not to exercise its preemptive right, then each Electing Party shall have the Board or governing body of the applicable Subsidiary at which any such issuance or sale right to purchase additional Equity Securities (a “Subject IssuanceSubsequent Purchase”), from those securities as to which no such right was exercised, in an amount equal to such Electing Party’s Sharing Percentage relative to the Sharing Percentages of the other Electing Parties. In the event of a situation described in the preceding sentence in which a Class A Unitholder elects not to exercise its preemptive right with respect to a proposed transaction or transactions, the Company shall provide notice (the “Subsequent Notice”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
such fact within three (iii3) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment all of the Preemptive Securities set forth notices concerning such elections from the parties possessing such preemptive rights. Each Electing Party shall respond to this Subsequent Notice by sending a response notice with respect thereto within three (3) Business Days after delivery of the Subsequent Notice. The failure of an Electing Party to respond to such Subsequent Notice and affirmatively exercise its preemptive right in such Issuance Notice on accordance with the terms of this Agreement shall be deemed an election not to exercise its preemptive right in connection with such Subsequent Purchase, but shall not affect such Class A Unitholder’s preemptive right in relation to any future transaction or transactions in accordance with this Section 9.4. At any time within thirty (30) days after the determination of the Class A Unitholders which have exercised their preemptive rights under this Section 9.4 and conditionsthe amount of Equity Securities each such Class A Unitholder or its Affiliates will acquire pursuant to this Section 9.4, including if there remain available any of the purchase priceEquity Securities proposed by the Company as to which no preemptive right has been exercised, the Company may sell such Equity Securities to third parties not affiliated with the Company at a price and on terms and conditions no more favorable to such third parties than that set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Initial Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following After the expiration of such thirty (30) day period, if the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary Company has not sold the Equity Securities subject to the Initial Notice, the Company may not sell such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Equity Securities without first complying again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)9.4.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Black Ridge Oil & Gas, Inc.)
Preemptive Right. If at any time the Company desires to issue or sell any shares of its capital stock or securities convertible, exercisable or exchangeable for the Company's capital stock (iother than Non-Preemptive Shares) Subject (the "ADDITIONAL SHARES") to any Person, the Company shall give a written notice (the "ISSUANCE NOTICE") to the following sentencePurchasers setting forth the proposed terms of the sale of such Additional Shares and the quantity of Additional Shares to be issued, PubCo the proposed issuance date and the price at which such Additional Shares shall be issued. Each of the Purchasers shall have the option to purchase the number of Additional Shares necessary to maintain such Purchaser's percentage of issued and outstanding shares of the Company at the time of the Issuance Notice, which option may be exercised by giving written notice to the Company (on its own behalf and on behalf the "RESPONSE NOTICE") within 14 days of each the Issuance Notice that contains an agreement to purchase all or any portion of its Subsidiaries) grants the Additional Shares to NB which such Purchaser is entitled to purchase. Failure by a Purchaser to give the Response Notice to the Company within such 14-day period shall be deemed to be a rejection of such option. For a period of 180 days after any Issuance Notice, the Company shall have the right to purchase up to its Allotment of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in (a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f"THIRD PARTY BUYER") shall be exercisable only as up to the strip number of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth Additional Shares specified in the Issuance Notice by delivering a written notice less the number of Additional Shares subscribed for pursuant to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding duly tendered Response Notices at the same price and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on other terms not materially less favorable to PubCo the Company than as specified in the Issuance Notice. At the time of the closing of the sale of the Additional Shares to one or its applicable Subsidiary than those more Third Party Buyers, the Company shall sell to such Purchaser and such Purchaser shall purchase the Additional Shares that such Purchaser agreed to purchase in the Response Notice, at the price and on the terms set forth in the Issuance Notice. Any If at the end of the 180th day following any Issuance Notice, the Company has not completed the issuance described in the Issuance Notice, each Purchaser that has provided a Response Notice shall be released from its obligations thereunder. If the Company desires to issue or sell Additional Shares, (i) after such issuance 180-day period, (ii) except in connection with an Initial Public Offering, on terms materially less favorable to the Company than as specified in the Issuance Notice, (iii) except in connection with an Initial Public Offering, at a price less than the price specified in the Issuance Notice or sale (iv) except in connection with an Initial Public Offering, in a quantity greater than as specified in the Issuance Notice, the Company must be closed on or before a deadline (which may be again comply with this SECTION 5(E). If the occurrence Company desires to take any of an event or date certain) for closing such issuance or sale the actions set forth in clauses (ii), (iii) or (iv) of the applicable Issuance Noticeprior sentence in connection with an Initial Public Offering, not to exceed 180 days each Purchaser, at its option, shall be released from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance its obligations under its Response Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, rights and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale obligations of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of parties pursuant to this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(fSECTION 5(E) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfiedclosing of an Initial Public Offering.
Appears in 1 contract
Samples: Series Cc Purchase Agreement (Commvault Systems Inc)
Preemptive Right. If the Directors vote to sell or issue additional Membership Units or other equity securities (iwhether a newly created class of Membership Units or other equity securities or rights to acquire Membership Units or other equity securities) Subject to any Person, the following sentence, PubCo Company shall first extend to each Qualified Member (on its own behalf and on behalf of each of its Subsidiariesas defined below) grants to NB the preemptive right to purchase up to its Allotment acquire a pro rata portion (based on each such Member’s then-outstanding proportionate ownership of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(fMembership Units) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
Membership Units or other equity securities to be sold or issued. The Company shall provide at least ten (ii10) PubCo shall give days' prior written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed sale or issuance to the Qualified Members describing in reasonable detail the Membership Units or sale.
other equity securities being so offered, the purchase price thereof (iiiif any), the payment terms, and the Qualified Member’s pro rata portion of such Membership Units (the "Preemptive Right Notice"). No Member shall have any obligation to acquire such Membership Units or other equity securities. All additional Membership Units or other equity securities sold or issued in any instance under this Section 8.7 shall be issued at the same purchase price (if any) NB shalland on the same terms as those offered, for or to be offered, to such Person. A "Qualified Member" means a Member that, at the time of such offering, (a) is qualified to be an investor under the investor qualification provisions of such offering (such as requirements that investors be "accredited investors" under Regulation D promulgated under the Securities Act of 1933, as amended), (b) is not in breach or default of any of such Members’ obligations under this Agreement, and (c) otherwise complies with the requirements of the offering. A Qualified Member may exercise the preemptive right granted under this Subsection by giving notice to the Company of such Qualified Member’s exercise within ten (10) days (the "Exercise Period") after receipt of the Preemptive Right Notice. For a period of 15 Business Days following the receipt of an Issuance Notice ninety (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f90) with respect to the purchase of such Preemptive Securities.
(iv) Following days after the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall the Company will be free to complete issue any such Membership Units with respect to which the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice preemptive right hereunder was not duly exercised on terms not materially less favorable and conditions substantially identical to PubCo or its applicable Subsidiary than the acquirer(s) as those set forth in offered to the Issuance Qualified Members pursuant to the Preemptive Right Notice. Any such issuance If the Company fails to transfer the Membership Units within this ninety (90) day period, any Membership Units or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such equity securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would by the Company to any Person must be re-offered to Qualified Members pursuant to this Section. This Section 8.7 does not require apply to, and the Members shall have no preemptive rights with respect to, any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo Membership Units to employees or other persons providing services to the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and Company solely in any event within ten (10) Business Days consideration of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)services.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Preemptive Right. Prior to any issuance by the Company (i) Subject other than pursuant to the following sentence, PubCo (on its own behalf and on behalf of each of its SubsidiariesWarrants) grants to NB the right to purchase up to its Allotment of any Preemptive Securities that PubCo or any shares of its Subsidiaries may from time to time issue or sell a particular class of capital stock to any Person in (an "Offeree"), after the date hereof (a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions"Proposed Issuance"), the rights granted pursuant Company will offer to this Section 2.3(fsell to each Stockholder a number of such securities (the "Offered Shares") necessary to ensure that such Stockholder's Ownership Ratio with respect to such class of capital stock immediately after the Proposed Issuance (including the Offered Shares) is equal to the Ownership Ratio immediately prior to the Proposed Issuance; provided that neither (A) the issuance by the Company of shares to any member of Management within 2 years of the Closing Date nor (B) the reissuance to Management by the Company of shares which were repurchased by the Company shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo a Proposed Issuance. The Company shall give each Stockholder at least 10 business days prior written notice (an “Issuance Notice”) to NB of any Proposed Issuance, which notice shall disclose in reasonable detail the proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of such issuance (the proposed issuance "Issuance Notice"). Each Stockholder will be entitled to elect to purchase all or sale.
(iii) NB shall, any of the Offered Shares for the same consideration and otherwise on the same terms as the Offeree by delivery of a period written notice to the Company within 5 business days after delivery of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”"Election Notice"), have the right to elect . If any such Stockholder elects to purchase up to its Allotment any Offered Shares, the sale of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) Offered Shares shall be consummated at such location, date, and the same time as specified by PubCo. Each of PubCo the Proposed Issuance or 20 business days after the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale delivery of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f)Election Notice, in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholderswhichever occurs later. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth The rights granted in this Section 2.3(f).
(vii) The rights 5 are exercisable by the Stockholders and their Permitted Transferees alone and are not transferable or assignable in connection with a sale of NB under this capital stock or otherwise. This Section 2.3(f) shall 5 will terminate automatically with respect to any particular Stockholder, and be of no further force and effect with respect to such Stockholder, upon the first earlier to occur of the consummation of an underwritten public offering registered under the Securities Act of the Common Stock or such Stockholder ceasing to own at least 50% of the capital stock owned by it on the date that the NB First Ownership Threshold is no longer satisfiedhereof.
Appears in 1 contract
Preemptive Right. If the Company desires to issue or sell (a "Transaction") any of its securities (except (i) Subject to the following sentence, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB the right to purchase up to its Allotment of any Preemptive Securities that PubCo employees who are not officers or any of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportionsdirectors, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice to its employees who are officers and/or directors under the Company's existing savings plan and (an “Issuance Notice”iii) to NB its employees who are officers and/or directors pursuant to the exercise of any proposed stock options granted or that may be granted under the current terms of the Company's existing stock option plan), including the issuance or sale of Preemptive Securities within five Business Days following any meeting option or warrant or any indebtedness convertible into any equity securities of the Board or governing body Company (the "Offered Securities"), the Company must comply with the provisions of this Section prior to consummating any Transaction of any Offered Securities. In connection with any issuance of sale of Offered Securities, the Company agrees to submit to Tri-Link a written offer (the "Offer") to sell, on the same terms and conditions, including price, a portion of the applicable Subsidiary at which any such issuance or sale Offered Securities, so that the percentage of ownership and voting rights of Tri-Link in the Company's securities immediately before the consummation of the Transaction will be the same as immediately following the consummation of the Transaction (a “Subject Issuance”) is approved"Tri-Link's Portion"). The Issuance Notice Offer shall set forth disclose the material price, the number of Offered Securities, the rights, benefits, terms and other provisions of the Offered Securities and any other the terms and conditions of the proposed issuance Transaction. Tri-Link shall have the irrevocable and exclusive option, but not the obligation (the "Option"), to purchase all or sale.
a portion of Tri-Link's Portion of the total number of Offered Securities in the Transaction. The Option shall be exercisable by Tri-Link by giving notice of such exercise (iiithe "Exercise Notice") NB to the Company within ten business days following receipt of the Offer. The Exercise Notice shall, when taken in conjunction with the Offer, be deemed to constitute a valid, legally binding and enforceable agreement for a period the sale and purchase of 15 Business Days following such securities. Failure by Tri-Link to exercise the receipt of Option or to give an Issuance Exercise Notice (shall be deemed an election by Tri-Link not to exercise the “Exercise Period”), have Option and if Tri-Link does not exercise the right to elect to purchase up to its Allotment of Option then the Preemptive Company may sell the Offered Securities at any time during the ensuing 60 days in strict conformity with the terms set forth in the Offer. Any such Issuance Notice on the sale shall be at a price and upon other terms and conditions, including if any, not more favorable to the purchase price, set forth purchaser of the Offered Securities than those specified in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”)Offer. The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by If at the end of such 60-day period the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary Company has not sold such Preemptive the Offered Securities, all restrictions on the sale or transfer of the Offered Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall again be consummated at such location, date, and time as specified by PubCoin effect. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth anything in this Section 2.3(f).
(vii) The rights to the contrary, Tri-Link shall not have the Option with respect to any given Transaction to purchase any of NB under this Section 2.3(f) shall terminate upon the first date Offered Securities, if the lead underwriter or bona fide third party placement agent retained by the Company in connection with the offering of the Offered Securities reasonably determines in writing prior to the commencement of such offering that the NB First Ownership Threshold is no longer satisfiedexercise of the Option by Tri-Link would materially and adversely affect the offering of the Offered Securities.
Appears in 1 contract
Preemptive Right. Seller and Buyer acknowledge and agree that the Property is subject to the right of first offer, right of first refusal or similar preemptive right to purchase in favor of a third party, more particularly described in Schedule 2.3 attached hereto (the "Preemptive Right”). As soon as reasonably practicable, but in no event later than five (5) business days after the Effective Date, Seller shall prepare and deliver (unless the same has previously been prepared and delivered) to the holder of the Preemptive Right (“Right Holder”) a notice that is effective to offer or otherwise trigger the Preemptive Right in accordance with the terms of the Preemptive Right and such Right Notice shall request that the Right Holder execute an affirmative waiver of the Preemptive Right with respect to the transactions contemplated in this Agreement in accordance with the terms of the Preemptive Right (“Right Notice”). Buyer acknowledges that the Right Holder is or may be entitled to receive a copy of this executed Agreement in order to trigger the applicable Preemptive Right. Seller shall concurrently provide Buyer with a copy of the Right Notice that is sent to the Right Holder and shall use commercially reasonable efforts (but in no event shall Seller be required to incur any cost or expense) to obtain an affirmative written waiver from the Right Holder of such Right Holder’s Preemptive Right as they relate to the transactions contemplated in this Agreement; it being understood and agreed, however, that the Preemptive Right may survive the transactions contemplated in this Agreement in connection with future sales or other transfers of the Preemptive Right Property to a subsequent purchaser. Seller hereby acknowledges and agrees that Buyer’s obligation to purchase the Preemptive Right Property is contingent on the Right Holder either (i) Subject executing a written affirmative waiver of the Right Holder’s Preemptive Right, or (ii) electing not to (or failing to) timely exercise such Right Holder’s Preemptive Right in accordance with the terms of the Preemptive Right prior to the following sentenceScheduled Closing Date (the “Waiver Conditions”). Seller shall promptly notify Buyer and Escrow Holder in writing if and when either of the Waiver Conditions are satisfied (the “Waiver Notice”) and (a) if the Waiver Condition referenced in clause (i) above is satisfied, PubCo an original version of the affirmative written waiver shall be enclosed with the Waiver Notice, and (on b) if the Waiver Condition in clause (ii) above is satisfied, an original executed written statement from Seller certifying that the applicable Right Holder has failed to timely exercise its own behalf and on behalf of each of its Subsidiaries) grants to NB Preemptive Right in accordance with the right to purchase up to its Allotment terms of any such Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or saleRight shall be enclosed with the Waiver Notice (the “Waiver Evidence”). In the event PubCo or a Subsidiary offers or sells the Right Holder timely exercises its Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportionsRight, this Agreement will be terminated and the rights granted pursuant deposit refunded to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approvedBuyer. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. FurthermoreAlternatively, in the event the Board determines in good faith there Right Holder does not exercise its Preemptive Right by the Scheduled Closing Date because such Right Holder is a reasonable pursuing its Preemptive Right and/or the time period allotted such Right Holder to decide whether to exercise its Preemptive Right (the date which is three business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or days after the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days expiration of such sale)allotted time period is herein called the “Outside Preemptive Right Closing Date”) has not expired by the applicable Scheduled Closing Date, at PubCo’s then Buyer shall have the right to terminate this Agreement or extend the Subsidiary’s electionapplicable Scheduled Closing Date until a date that is no later than two business days after the Outside Preemptive Right Closing Date. Subject to Section 2.4 below, (A) the purchasers of such Preemptive Securities in no event shall offer Seller be liable to sell Buyer, or be deemed to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) be in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB default under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfiedAgreement if it fails to obtain Waiver Evidence or a Right Holder exercises its Preemptive Right.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Preemptive Right. (i) Subject to At the following sentence, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB the right to purchase up to its Allotment time of any Preemptive Securities that PubCo or any future issuance and sale of its Subsidiaries may from time to time issue or sell membership interests in the Company pursuant to any Person in a primary issuance or sale. In future offerings to raise capital for the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportionsCompany (the "New Securities"), the rights granted pursuant Company shall offer to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give each Preferred Shareholder by written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shallright, for a period of 15 Business Days following thirty (30) days, to purchase for cash at an amount equal to the receipt price or other consideration for which the New Securities are to be issued, a number of an Issuance Notice the New Securities so that, after giving effect to such issuanc e, such Preferred Shareholder will continue to maintain his same Percentage Interest in the Company as of the date of such notice (the “Exercise Period”"Preemptive Right"); provided, have -------- however, that the right to elect to purchase up to its Allotment Preemptive Right of the Preemptive Preferred Shareholders shall not apply ------- to the New Securities set forth which are (A) Series C Common Shares issued to employees or consultants of the Company in such Issuance Notice on connection with services they provide to the terms Company; (B) issued to pursuant to an acquisition, merger, consolidation or similar business combination transaction and conditions, including the purchase price, set forth in the Issuance Notice by delivering (C) issued pursuant to a public offering. The Company's written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB the Preferred Shareholders shall be a binding and irrevocable offer by NB to purchase describe the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive New Securities proposed to be issued but that would not require by the Company and specify the number, price and payment terms. Each Preferred Shareholder may accept the Company's offer as to the full number of New Securities offered to it or any vote lesser number, by written notice thereof given by it to the Company prior to the expiration of PubCo’s stockholders. Furthermorethe aforesaid thirty (30) day period, in the which event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f)Company shall promptly sell and such Preferred Shareholder shall buy, PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with upon the terms specified, the number of Section 2.3(f)securities June 17, so long as, as promptly as is reasonably practicable following 1998 agreed to be purchased by such sale (Preferred Shareholder. The Company shall be free to offer and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB any third party or parties the portion number of such New Securities not purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each caseby any Preferred Shareholder, at a purchase price no more, and on payment terms no less favorable to NB, the Company than those applicable specified in such notice of offer to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)the Preferred Shareholders.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Preemptive Right. Notwithstanding Borrower's LLC Agreement (ias defined in the Assignment Agreement), upon the assignment of the Membership Interests (as defined in the Assignment Agreement) Subject to the following sentenceLender pursuant to SECTION 3(c)(iii), PubCo (on its own behalf and on behalf of each of its Subsidiaries) Borrower grants to NB Lender the preemptive right to purchase up to its Allotment Lender's Proportionate Interest (defined below) of any Preemptive Securities Membership Interests that PubCo or any of its Subsidiaries may Borrower may, from time to time issue or time, propose to sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportionsother person; provided, the rights granted pursuant to this Section 2.3(f) however, that Lender shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to have any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the preemptive right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase distribution by, or exchange offer of, Borrower of its securities to all of its members of any Membership Interests that is made pro rata, based on the percentage of the outstanding Membership Interests owned by each Assignor (as defined in the Assignment Agreement) and Lender. As used in this Agreement, "PROPORTIONATE INTEREST" means the quotient of the Membership Interests owned by Lender, divided by the total Membership Interests issued and outstanding. If Borrower proposes to sell securities in a transaction subject to the preemptive right granted in this Section, then Borrower shall give Lender written notice (a "PREEMPTIVE RIGHT NOTICE") of Borrower's intention, describing the type of securities to be sold and the price and general terms upon which Borrower proposes to sell such securities. If the price specified in the Preemptive Right Notice is payable in whole or in part in property (including without limitation the securities of any other issuer) other than cash, then Lender shall pay cash in lieu of such Preemptive Securities.
(iv) Following property, at the expiration fair market value of the Exercise Period, PubCo or its applicable Subsidiary such property determined in good faith by Assignors and Lender. Lender shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 have 15 days from the date the Issuance Preemptive Right Notice was given; and is given to notify Borrower whether Lender elects to purchase all or any portion of Lender's Proportionate Interest of such securities for the avoidance of doubt, identical price and upon the price at which same general terms specified in the Preemptive Securities are sold Right Notice. Such notice (the "ELECTION NOTICE") shall be in writing and shall state the quantity of such securities to be so purchased. If Lender does not timely deliver an Election Notice, it shall be deemed to have waived its preemptive rights with respect to such sale, provided that Borrower consummates the prospective purchaser seeking to purchase sale within 180 days after the applicable Preemptive Securities, or any other purchaser, must be expiration of such 15 day period at least a price equal to or higher greater than the purchase price described specified in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior Right Notice given to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities Lender by NB Borrower under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive SecuritiesSection.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Preemptive Right. (ia) Subject If at any time after the Issuance Date the Company desires to issue or sell for cash any additional Common Shares or securities convertible, exercisable or exchangeable for the Company's Common Shares (the "Additional Shares") to any Person (other than as part of a public offering registered under the Securities Act of 1933, as amended), the Company shall give a written notice (the "Issuance Notice") to the following sentenceholders of Class C Shares setting forth the proposed terms of the sale of such Additional Shares and the quantity of Additional Shares to be issued, PubCo the proposed issuance date and the price at which such Additional Shares shall be issued. Each of the holders of Class C Shares shall have the option to purchase the number of Additional Shares necessary to maintain such holder's Ownership Percentage (on its own behalf and on behalf as defined below) at the time of each the Issuance Notice, which option may be exercised by giving written notice to the Company (the "Response Notice") within 14 days of its Subsidiaries) grants the Issuance Notice that contains an agreement to NB purchase all or any portion of the Additional Shares to which such holder of Class C Shares is entitled to purchase. Failure by a holder of Class C Shares to give the Response Notice to the Company within such 14-day period shall be deemed to be a rejection of such option. For a period of 180 days after any Issuance Notice, the Company shall have the right to purchase up to its Allotment of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in (a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f"Third Party Buyer") shall be exercisable only as up to the strip number of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth Additional Shares specified in the Issuance Notice by delivering a written notice less the number of Additional Shares subscribed for pursuant to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding duly tendered Response Notices at the same price and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on other terms not materially less favorable to PubCo the Company than as specified in the Issuance Notice. At the time of the closing of the sale of the Additional Shares to one or its applicable Subsidiary than those more Third Party Buyers, the Company shall sell to such holder of Class C Shares and such holder of Class C Shares shall purchase the Additional Shares that such holder of Class C Shares agreed to purchase in the Response Notice, at the price and on the terms set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be If at the occurrence end of an event or date certain) for closing such issuance or sale set forth in the applicable 180th day following any Issuance Notice, the Company has not to exceed 180 days from completed the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price issuance described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary , each holder of Class C Shares that has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) provided a Response Notice shall be consummated at such location, date, released from its obligations thereunder. The rights and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale obligations of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of parties pursuant to this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) paragraph shall terminate upon the first date that closing of an initial public offering. For purposes herein, "Ownership Percentage" shall mean the NB First Ownership Threshold fraction (expressed as a percentage), the numerator of which is no longer satisfiedthe number of Class C Shares owned by such holder and the denominator or which is the sum of the outstanding Common Shares and outstanding Class C Shares.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Kaanapali Land LLC)
Preemptive Right. (ia) Subject to the following sentence, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB the Prison Realty shall have a right to purchase up to its Allotment securities of the Company in any Preemptive issuance of securities (the "Additional Securities") by the Company which would otherwise have the effect of reducing Prison Realty's Ownership Percentage. Prison Realty's participation in any such issuance of Additional Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person shall be in a primary pro-rata amount and on the same terms and conditions as are called for by each future issuance (or sale. In as nearly as may be practicable in the event PubCo Prison Realty cannot comply with such terms and conditions). Additional Securities shall not include securities issued on or a Subsidiary offers before the date hereof or sells Preemptive Securities as a strip securities issued upon the exercise of multiple Equity Securities in combination with fixed proportions, derivative securities issued on or before the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securitiesdate hereof.
(iib) PubCo If the Company proposes to undertake an issuance of Additional Securities, it shall give written Prison Realty notice (an “Issuance Notice”) of its intention, describing the type of Additional Securities, the price and amount of Additional Securities to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of be issued, and the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material general terms and conditions of (including closing conditions) upon which the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following Company proposes to issue the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”)same. The delivery of an Acceptance Notice by NB notice shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period also state that Prison Realty shall constitute a waiver of NB’s rights under this Section 2.3(fhave thirty (30) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance giving of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securitiessuch notice, or such longer period if a longer period is specifically made available to any other purchaser, must be at least equal to or higher than agree to purchase Additional Securities for the purchase price described and upon the terms and conditions specified in the applicable Issuance Noticenotice by giving written notice to the Company and stating therein the quantity of Additional Securities to be purchased by Prison Realty.
(c) If Prison Realty shall fail to exercise in full such right within such thirty (30) days, or such longer period if specifically made available to any other purchaser, the Company shall have one hundred and twenty (120) days thereafter to sell the Additional Securities at a price and upon general terms and conditions (including closing conditions) no more favorable to the purchasers thereof than specified in the Company's notice pursuant to Section 1(b) above. In If the event PubCo or its applicable Subsidiary Company has not sold the Additional Securities within such Preemptive Securities at or prior to such deadlineone hundred and twenty (120) days, PubCo or its applicable Subsidiary the Company shall not thereafter issue or sell any Preemptive Additional Securities without first again offering such securities to NB the Shareholders in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.Section
Appears in 1 contract
Preemptive Right. (ia) Subject Prior to the following sentence, PubCo (on its own behalf and on behalf of each effective date of its Subsidiaries) Exchange Listing, the Company hereby grants to NB each Stockholder (each, a “Preemptive Stockholder”) the right to purchase up to its Allotment pro rata portion of any Preemptive Securities new Class B Common Stock (other than any Excluded Securities) (the “New Securities”) that PubCo or any of its Subsidiaries the Company may from time to time propose to issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securitiesparty.
(iib) PubCo The Company shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of described in Section 4.01(a) to the Preemptive Securities Stockholders within five (5) Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance, including:
(i) the number of New Securities proposed to be issued and the percentage of the Company’s outstanding Class B Common Stock on a fully diluted basis that such issuance or sale.would represent;
(ii) the proposed issuance date, which shall be at least twenty (20) days from the date of the Issuance Notice; and
(iii) NB shall, the proposed purchase price per share.
(c) Each Preemptive Stockholder shall for a period of 15 Business Days fifteen (15) days following the receipt of an Issuance Notice (the “Exercise Period”), ) have the right to elect irrevocably to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditionspurchase, including at the purchase price, price set forth in the Issuance Notice Notice, the amount of New Securities equal to the product of (i) the total number of New Securities to be issued by the Company on the issuance date and (ii) a fraction determined by dividing (A) the number of shares of Class B Common Stock owned by such Preemptive Stockholder immediately prior to such issuance by (B) the total number of shares of Common Stock outstanding on such date immediately prior to such issuance (the “Preemptive Pro Rata Portion”) by delivering a written notice to PubCo (a “Acceptance Notice”)the Company. The delivery of an Acceptance Notice by NB Such Preemptive Stockholder's election to purchase New Securities shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securitiesirrevocable.
(ivd) Following No later than five (5) Business Days following the expiration of the Exercise Period, PubCo the Company shall notify each Preemptive Stockholder in writing of the number of New Securities that each Preemptive Stockholder has agreed to purchase (including, for the avoidance of doubt, where such number is zero) (the “Over-allotment Notice”). Each Preemptive Stockholder exercising its right to purchase its Preemptive Pro Rata Portion of the New Securities in full (an “Exercising Stockholder”) shall have a right of over-allotment such that if any other Preemptive Stockholder fails to exercise its right under this Section 4.01 to purchase its Preemptive Pro Rata Portion of the New Securities (each, a “Non-Exercising Stockholder”), such Exercising Stockholder may purchase all or any portion of such Non-Exercising Stockholder's allotment (the “Over-allotment New Securities”) by giving written notice to the Company setting forth the number of Over-allotment New Securities that such Exercising Stockholder is willing to purchase within five (5) Business Days of receipt of the Over-allotment Notice (the “Over-allotment Exercise Period”). Such Exercising Stockholder's election to purchase Over-allotment New Securities shall be binding and irrevocable. If more than one Exercising Stockholder elects to exercise its applicable Subsidiary right of over-allotment, each Exercising Stockholder shall have the right to purchase the number of Over-allotment New Securities it elected to purchase in its written notice; provided, that if the over-allotment New Securities are over-subscribed, each Exercising Stockholder shall purchase its pro rata portion of the available Over-allotment New Securities based upon the relative Preemptive Pro Rata Portions of the Exercising Stockholders.
(e) The Company shall be free to complete the proposed issuance or sale of Preemptive New Securities described in the applicable Issuance Notice on with respect to any New Securities not elected to be purchased pursuant to Section 4.01(c) and Section 4.01(d) above in accordance with the terms not materially less favorable to PubCo or its applicable Subsidiary than those and conditions set forth in the Issuance Notice. Any Notice (except that the amount of New Securities to be issued or sold by the Company may be reduced) so long as such issuance or sale must be is closed on or before within thirty (30) days after the expiration of the Over-allotment Exercise Period (subject to the extension of such thirty (30) day period for a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, reasonable time not to exceed 180 an additional forty-five (45) days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking extent reasonably necessary to purchase the applicable Preemptive Securities, or obtain any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance NoticeGovernment Approvals). In the event PubCo or its applicable Subsidiary the Company has not sold such Preemptive New Securities at or prior to within such deadlinetime period, PubCo or its applicable Subsidiary the Company shall not thereafter issue or sell any Preemptive New Securities without first again offering such securities to NB the Stockholders in accordance with the procedures set forth in this Section 2.3(f)4.01.
(vf) The closing Upon the consummation of the issuance of any purchase of Preemptive New Securities by NB under in accordance with this Section 2.3(f4.01, the Company shall deliver to each Exercising Stockholder certificates (if any) evidencing the New Securities, which New Securities shall be consummated at such location, dateissued free and clear of any Liens (other than those arising hereunder and those attributable to the actions of the purchasers thereof), and time as specified by PubCothe Company shall so represent and warrant to the purchasers thereof, and further represent and warrant to such purchasers that such New Securities shall be, upon issuance thereof to the Exercising Stockholders and after payment therefor, duly authorized, validly issued, fully paid, and non-assessable. Each Exercising Stockholder shall deliver to the Company the purchase price for the New Securities purchased by it by certified or official bank check or wire transfer of PubCo or immediately available funds. Each party to the Subsidiary, on the one hand, purchase and NB, on the other hand, sale of New Securities shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securitiesincluding entering into such additional agreements as may be necessary or appropriate.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Samples: Stockholders Agreement (Longaberger Licensing, LLC)
Preemptive Right. So long as Leucadia National Corporation (i"Leucadia") Subject beneficially owns at least 20% of the Shares sold to them on March 26, 2003, on May 22, 2000 and may be acquired by Leucadia under the Purchase Option dated May 22, 2000 ("Purchase Option"), if ISSUER elects to sell, for cash, New Securities (as hereinafter defined) at any time prior to the following sentencefour year anniversary date of this Subscription Agreement, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB SUBSCRIBER will have the right to purchase from ISSUER on the same terms as the proposed sale, up to that number of securities being offered as will maintain its Allotment then percentage ownership of ISSUER's Common Stock calculated on a fully diluted basis, but based solely on the Shares purchased by Leucadia on Marcy 26, 2003 and under the Subscription Agreement dated May 22, 2000 axx xxderlying the Purchase Option and not including any Preemptive Securities that PubCo or any additional shares of its Subsidiaries Common Stock which may from time be owned by Leucadia. ISSUER shall give notice to time issue or sell the SUBSCRIBER in writing ("ISSUER Notice") at least ten business days prior to any Person in a primary issuance or the proposed closing date of such proposed sale. In The ISSUER Notice shall describe in reasonable detail the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportionsproposed sale including, without limitation, the rights granted pursuant nature and number of securities to this Section 2.3(f) be sold, the nature of such sale, the consideration to be paid, and the name and address of the prospective purchasers ("Buyer"). Upon the giving of the ISSUER Notice, SUBSCRIBER shall be have the right, but not the obligation, exercisable only as by written notice to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities ISSUER within five Business Days following any meeting business days after receipt of the Board or governing body ISSUER Notice, to indicate to ISSUER its desire to purchase its permitted number of securities being sold in the applicable Subsidiary at which any such issuance or proposed sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth on the material same terms and conditions of as ISSUER is selling the securities in the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to SUBSCRIBER will purchase the Preemptive Securities described in securities to be offered and purchased under this section at the Acceptance Notice for cash, subject only to same time as the closing of the Subject Issuance actually occurring. The failure of NB proposed sale, and if SUBSCRIBER does not elect to deliver an Acceptance Notice by the end purchase any of the Exercise Period shall constitute a waiver shares of NB’s rights under common stock within said five days, then SUBSRIBER will be deemed to have waived its right to buy such offered shares. For purposes of this Section 2.3(f8, "New Securities" means any shares of capital stock of the ISSUER, including Common Stock and preferred stock, whether now authorized or not, and rights, options or warrants to purchase said shares of Common Stock or preferred stock of the ISSUER, and securities of any type whatsoever that are, or may become, convertible into said shares of Common Stock or preferred stock; provided, however, "New Securities" does not include (i) with respect the shares of Common Stock issuable upon exercise of the Purchase Option as such term is defined under the Subscription Agreement dated May 22, 2000, (ii) securities issuable upon exercise or conversion of securities outstanding on the date hereof, (iii) securities offered to the purchase of such Preemptive Securities.
public generally pursuant to a registration statement under the Securities Act, (iv) Following securities issued to employees, officers or directors of, or consultants to, the expiration ISSUER, or issued or issuable to banks or other institutional lenders or lessors in connection with capital asset leases or borrowings for the acquisition of capital assets, landlords, or other providers of goods and services to the ISSUER, in each case, if pursuant to any arrangement approved by the board of directors of the Exercise PeriodISSUER (including securities issued upon exercise or conversion of any such securities), PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certainv) securities issued for closing such issuance or sale set forth in the applicable Issuance Noticecash, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are $500,000,(excluding shares sold to the prospective purchaser seeking to purchase Parker family and Leucadia) in any private placement by ISSUER subject xx xx agreement entered into within ten business days after the applicable Preemptive Securitiesdate of this Subscription Agreement (including securities issued upon exercise or conversion of any such securities), or (vi) any other purchaserissuance of capital stock of the ISSUER upon the exercise or conversion of derivative securities, must be at least equal to or higher than the purchase price described in issuance of which triggered the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures pre-emptive rights set forth in this Section 2.3(f).
(v) The closing of any purchase of 8. This provision will be deemed to supersede Section 8 "Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale Right" of the Preemptive SecuritiesSubscription Agreement dated May 22, 2000.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Preemptive Right.
(ia) Subject to the following sentence, PubCo (on its own behalf and on behalf of each of its Subsidiaries) The Company hereby grants to NB each Initial Stockholder and their Permitted Transferees (each, a "Preemptive Stockholder") the right to purchase up to its Allotment pro rata portion of any Preemptive Securities new Common Stock (other than any Excluded Securities) (the "New Securities") that PubCo or any of its Subsidiaries the Company may from time to time propose to issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.party.
(iib) PubCo The Company shall give written notice (an “"Issuance Notice”") to NB of any proposed issuance or sale of described in Section 4.01(a) to the Preemptive Securities Stockholders within five (5) Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance, including:
(i) the number of New Securities proposed to be issued and the percentage of the Company's outstanding Common Stock on a fully diluted basis that such issuance or sale.would represent;
(ii) the proposed issuance date, which shall be at least twenty (20) Business Days from the date of the Issuance Notice; and
(iii) NB shall, the proposed purchase price per share.
(c) Each Preemptive Stockholder shall for a period of 15 fifteen (15) Business Days following the receipt of an Issuance Notice (the “"Exercise Period”), ") have the right to elect irrevocably to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditionspurchase, including at the purchase price, price set forth in the Issuance Notice Notice, the amount of New Securities equal to the product of (i) the total number of New Securities to be issued by the Company on the issuance date and (ii) a fraction determined by dividing (A) the number of shares of Common Stock owned by such Preemptive Stockholder immediately prior to such issuance by (B) the total number of shares of Common Stock outstanding held by all of the Preemptive Stockholders on such date immediately prior to such issuance (the "Preemptive Pro Rata Portion") by delivering a written notice to PubCo (a “Acceptance Notice”)the Company. The delivery of an Acceptance Notice by NB Such Preemptive Stockholder's election to purchase New Securities shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.irrevocable.
(ivd) Following No later than five (5) Business Days following the expiration of the Exercise Period, PubCo the Company shall notify each Preemptive Stockholder in writing of the number of New Securities that each Preemptive Stockholder has agreed to purchase (including, for the avoidance of doubt, where such number is zero) (the "Over-allotment Notice"). Each Preemptive Stockholder exercising its right to purchase its Preemptive Pro Rata Portion of the New Securities in full (an "Exercising Stockholder") shall have a right of over-allotment such that if any other Preemptive Stockholder fails to exercise its right under this Section 4.01 to purchase its Preemptive Pro Rata Portion of the New Securities (each, a "Non-Exercising Stockholder"), such Exercising Stockholder may purchase all or any portion of such Non-Exercising Stockholder's allotment (the "Over- allotment New Securities") by giving written notice to the Company setting forth the number of Over-allotment New Securities that such Exercising Stockholder is willing to purchase within five (5) Business Days of receipt of the Over-allotment Notice (the "Over-allotment Exercise Period"). Such Exercising Stockholder's election to purchase Over-allotment New Securities shall be binding and irrevocable. If more than one Exercising Stockholder elects to exercise its applicable Subsidiary right of over-allotment, each Exercising Stockholder shall have the right to purchase the number of Over-allotment New Securities it elected to purchase in its written notice; provided, that if the over-allotment New Securities are over-subscribed, each Exercising Stockholder shall purchase its pro rata portion of the available Over-allotment New Securities based upon the relative Preemptive Pro Rata Portions of the Exercising Stockholders.
(e) The Company shall be free to complete the proposed issuance or sale of Preemptive New Securities described in the applicable Issuance Notice on with respect to any New Securities not elected to be purchased pursuant to Section 4.01(c) and Section 4.01(d) above in accordance with the terms not materially less favorable to PubCo or its applicable Subsidiary than those and conditions set forth in the Issuance Notice. Any Notice (except that the amount of New Securities to be issued or sold by the Company may be reduced) so long as such issuance or sale must be is closed on or before within thirty (30) days after the expiration of the Over- allotment Exercise Period (subject to the extension of such thirty (30) day period for a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, reasonable time not to exceed 180 an additional thirty (30) days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking extent reasonably necessary to purchase the applicable Preemptive Securities, or obtain any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance NoticeGovernment Approvals). In the event PubCo or its applicable Subsidiary the Company has not sold such Preemptive New Securities at or prior to within such deadlinetime period, PubCo or its applicable Subsidiary the Company shall not thereafter issue or sell any Preemptive New Securities without first again offering such securities to NB the Stockholders in accordance with the procedures set forth in this Section 2.3(f)4.01.
(vf) The closing Upon the consummation of the issuance of any purchase of Preemptive New Securities by NB under in accordance with this Section 2.3(f4.01, the Company shall deliver to each Exercising Stockholder certificates (if any) evidencing the New Securities, which New Securities shall be consummated at such location, dateissued free and clear of any Liens (other than those arising hereunder and those attributable to the actions of the purchasers thereof), and time as specified by PubCothe Company shall so represent and warrant to the purchasers thereof, and further represent and warrant to such purchasers that such New Securities shall be, upon issuance thereof to the Exercising Stockholders and after payment therefor, duly authorized, validly issued, fully paid, and non-assessable. Each Exercising Stockholder shall deliver to the Company the purchase price for the New Securities purchased by it by certified or official bank check or wire transfer of PubCo or immediately available funds. Each party to the Subsidiary, on the one hand, purchase and NB, on the other hand, sale of New Securities shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securitiesincluding entering into such additional agreements as may be necessary or appropriate.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Samples: Stockholders Agreement
Preemptive Right. If the Issuer or any subsidiary proposes to issue to any party other than the Issuer or a wholly owned subsidiary of the Issuer any shares of capital stock or securities exercisable or exchangeable for or convertible into shares of capital stock (“Capital Stock Equivalents”), then the Issuer shall first offer all of such capital stock or Capital Stock Equivalents (the “New Securities”) to the Holder on the terms described herein by delivery of written notice (a “Preemptive Rights Notice”) to the Holder. Each Preemptive Rights Notice shall set forth (i) Subject a description of the New Securities, (ii) the price to be received in exchange therefor, (iii) the following sentencenumber of New Securities being offered and (iv) any other material terms of the proposed issuance. Upon receipt of a Preemptive Rights Notice, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB the Holder shall have the right to purchase up (or to cause its Allotment affiliates to purchase) from the Issuer its pro rata portion (determined on a fully diluted basis of the Issuer’s issued and outstanding securities, including the shares of common stock underlying the outstanding Warrants) of the New Securities, for the purchase price (payable in cash) and upon the other terms and conditions set forth in such Preemptive Rights Notice. If the Holder or its affiliate desires to purchase all or any Preemptive part of its pro rata portion of the New Securities, the Holder shall deliver a written notice to the Issuer setting forth the number of New Securities that PubCo the Holder or any affiliate desires to purchase. Such written notice shall be delivered within 10 days after the date of its Subsidiaries may from time receipt of the Preemptive Rights Notice by the Holder. Such notice shall, when taken in conjunction with the Preemptive Rights Notice, be deemed to time issue or sell to any Person in constitute a primary issuance or salevalid, legally binding and enforceable agreement for the sale and purchase of the Holder’s pro rata portion (determined on a fully diluted basis of the Issuer’s issued and outstanding securities, including the shares of common stock underlying the outstanding Warrants) of the New Securities. In the event PubCo or a Subsidiary offers or sells Preemptive The closing of each sale of New Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only take place at the offices of the Issuer as soon as practicable, but no later than the date of the closing of the first sale of New Securities other than pursuant to the strip of all such Preemptive Securities, and Rights Notice. Any New Securities that are not separately purchased as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days provided in this Section may be sold during the 120-day period following any meeting the deadline for acceptance by the Holder of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, offer set forth in the Issuance Preemptive Rights Notice by delivering a written notice to PubCo any other Person (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing including other stockholders of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by Issuer and/or their affiliates) for the end of price and upon the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Preemptive Rights Notice. Any After such issuance or sale must be closed on or before a deadline (which 120-day period, no New Securities may be sold by the occurrence Issuer or any subsidiary without again complying with the requirements of an event or date certain) for closing this Section 2 with regard to such issuance or sale set forth in New Securities. Notwithstanding anything herein to the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubtcontrary, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), 2 shall not apply to capital stock or Capital Stock Equivalents which are proposed to be and are issued in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions Permitted Financing. For purposes of this Section 2.3(f) will not apply2, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, “Permitted Financing” shall mean (A) issuances of shares of Common Stock or options to employees, officers, directors or consultants of the purchasers Issuer pursuant to any stock or option plan duly adopted by a majority of the independent, non-employee members of the Board of Directors of the Issuer or a majority of the members of a committee of independent, non-employee directors established for such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or purpose; (B) PubCo issuances of securities upon the exercise or exchange of or conversion of any securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) date this Amendment becomes effective; and (C) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the independent, disinterested directors, but not including a transaction with an entity whose primary business is investing in each case, at securities or a purchase price no more, and on terms no less favorable transaction the primary purpose of which is to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)raise capital.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Preemptive Right. If at any time the Company desires to issue or sell any shares (ithe "ADDITIONAL Shares") Subject of its capital stock that entitle the holder thereof to voting rights (other than Non-Preemptive Shares) to any Person, the Company shall give a written notice (the "ISSUANCE NOTICE") to the following Purchasers setting forth the proposed terms of such Additional Shares and the quantity of Additional Shares to be issued, the issuance date and the price at which such Additional Shares shall be issued. Each of the Purchasers shall have the option to purchase the number of Additional Shares necessary to maintain such Purchaser's percentage of issued and outstanding voting shares of the Company at the time of the Issuance Notice, which option may be exercised by giving written notice to the Company (the "RESPONSE NOTICE") within 14 days of the Issuance Notice that contains an unconditional agreement to purchase all (and not less than all) of the Additional Shares to which such Purchaser is entitled to purchase. Failure by a Purchaser to give the Response Notice to the Company within such 14-day period shall be deemed to be a rejection of such option. At the option of the Company, within 14 days of Company's receipt of the Response Notice or at the time of the closing of the sale of Additional Shares to any Persons pursuant to the next sentence, PubCo (on its own behalf the Company shall sell to such Purchaser and such Purchaser shall purchase the Additional Shares that such Purchaser agreed to purchase in the Response Notice, at the price and on behalf the terms set forth in the Issuance Notice. For a period of each of its Subsidiaries) grants to NB 270 days after any Issuance Notice, the Company shall have the right to purchase up to its Allotment of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as up to the strip number of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth Additional Shares specified in the Issuance Notice by delivering less the number of Additional Shares pursuant to duly tendered Response Notices at a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding price and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary the Company than those set forth as specified in the Issuance Notice. Any If the Company desires to issue or sell Additional Shares, (i) after such issuance or sale must be closed 270-day period, (ii) on or before a deadline (which may be terms materially less favorable to the occurrence of an event or date certain) for closing such issuance or sale set forth Company than as specified in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for or (iii) in a quantity greater than as specified in the avoidance of doubtprevious sentence, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, Company must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying comply with this Section 2.3(f5(g), PubCo or . The rights and obligations of the Subsidiary may issue or sell Preemptive Securities parties pursuant to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f5(g) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfiedclosing of an Initial Public Offering.
Appears in 1 contract
Preemptive Right. (ia) The Company shall give each Holder written notice of the Company's intention to issue, sell or distribute Additional Securities (as defined in Section 14(f) below) (the "ISSUANCE NOTICE"), describing the type of Additional Securities, the price at which the Additional Securities will be issued or sold and the general terms upon which the Company proposes to issue, sell or distribute the Additional Securities, including the anticipated date of such issuance, sale or distribution and the general use of proceeds thereof.
(b) Each Holder shall have 15 Business Days from the date it receives the Issuance Notice to agree to purchase all or any portion of its Pro Rata Portion (as defined in Section 14(e) below) of such Additional Securities by giving written notice to the Company of its desire to purchase Additional Securities (the "RESPONSE NOTICE") and stating therein the quantity of Additional Securities to be purchased. Subject to the following sentencelast sentence of this subdivision, PubCo (on its own behalf and on behalf such Response Notice shall constitute the irrevocable agreement of each of its Subsidiaries) grants to NB the right such Holder to purchase up the quantity of Additional Securities indicated in the Response Notice at the price and upon the terms stated in the Issuance Notice; PROVIDED, HOWEVER, that if the Company is proposing to its Allotment of any Preemptive issue, sell or distribute Additional Securities that PubCo or any of its Subsidiaries may from time for consideration other than all cash, and subject to time issue or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, limitations on the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in Section 14(h), the Company shall accept from such Issuance Notice on Holder either non-cash consideration which is reasonably comparable to the terms and conditions, including non-cash consideration proposed by the Company or the cash value of such non-cash consideration. Any purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery Holder of an Acceptance Notice by NB Additional Securities shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only consummated on or prior to the closing later of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period, PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of Preemptive date on which all other Additional Securities described in the applicable Issuance Notice on terms not materially are issued, sold or distributed or the tenth Business Day following delivery of the Response Notice by such Holder. In the event that less favorable than 80% of all Additional Securities proposed to PubCo or its applicable Subsidiary than those be sold by the Company, as set forth in the Issuance Notice, are subscribed for in the aggregate by the Holders (or by third parties pursuant to Section 14(d) below within 180 days of the date of the Issuance Notice), the irrevocable agreement of Holders to purchase the Additional Securities subscribed for shall become fully revocable.
(c) Each Holder shall have the further right to subscribe for such portion of the Additional Securities to which it may become entitled to purchase under this Section 14(c). Any such issuance or sale must be closed on or before a deadline (which The Response Notice may be the occurrence of an event or date certain) for closing such issuance or sale set forth a number of Additional Securities ("REALLOTMENT SECURITIES") that such Holder elects to purchase in the applicable Issuance Noticeevent that there is any undersubscription for the entire amount of all Holders' Pro Rata Portions of the Additional Securities. In the event there is an undersubscription by the Holders for any portion of the aggregate Additional Securities offered, not the Company shall apportion the unsubscribed for Additional Securities to exceed those Holders whose Response Notices specified an amount of Reallotment Securities, which apportionment shall be on a pro rata basis among such Holders in accordance with the number of Reallotment Securities specified by all such Holders in their Response Notices.
(d) The Company shall have 180 days from the date of the Issuance Notice was given; and for to consummate the avoidance proposed issuance, sale or distribution of doubtthe Additional Securities which the Holders have not elected to purchase pursuant to Sections 14(b) or (c). Notwithstanding the foregoing, the price at Company may sell the Additional Securities which the Preemptive Securities Holders have not elected to purchase pursuant to a Response Notice at a price and upon terms that are sold less favorable to the prospective purchaser seeking Company than those specified in the Issuance Notice; PROVIDED that any purchase of Additional Securities by the Holders consummated at the time of such sale, pursuant to the penultimate sentence of Section 14(b), shall be upon the same less favorable terms; PROVIDED FURTHER that if a Holder did not elect to purchase any or all of its Pro Rata Portion of Additional Securities based upon the applicable Preemptive Securitiesterms specified in the relevant Issuance Notice, the Company shall provide such Holder with a revised Issuance Notice reflecting such less favorable terms, and each such Holder shall have 15 Business Days from the date such Holder receives such revised Issuance Notice to agree to purchase all or any other purchaser, must portion of its Pro Rata Portion of such Additional Securities to be at least equal to or higher than issued upon the purchase price described less favorable terms set forth in the applicable revised Issuance NoticeNotice by giving written notice to the Company of its desire to purchase such Additional Securities and stating therein the quantity of Additional Securities to be purchased. In the event PubCo the Company proposes to issue, sell or its applicable Subsidiary has not sold distribute Additional Securities after such Preemptive 180-day period or Additional Securities at or prior in addition to such deadlinethose specified in the Issuance Notice, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first it must again offering such securities to NB in accordance comply with the procedures set forth in this Section 2.3(f)14.
(ve) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions For purposes of this Section 2.3(f)14, "PRO RATA PORTION" means, with respect to each Holder, a number equal to the product of (i) the total number of Additional Securities specified in the event that Issuance Notice and (ii) a fraction, the issuance by PubCo or any Subsidiary numerator of Preemptive Securities which shall be the number of shares of Common Stock to NB which such Holder would require a vote be entitled upon exercise of PubCo’s stockholders his/its Warrants and the denominator of which shall be the total number of Fully Diluted Shares (whether because of applicable Law or rules as defined in Section 14(g) below) outstanding as of the stock exchange on which date of the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)Issuance Notice.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Preemptive Right. (i) Subject In the event that the Company proposes to undertake an issuance of New Securities (in a single transaction or a series of related transactions), it shall give each of the Investors written notice of its intention to issue New Securities (the “First Participation Notice”), describing the following: (i) the number and type of New Securities, (ii) the price and the general terms upon which the Company proposes to issue such New Securities, (iii) the identity of the third party to which the Company proposes to issue such New Securities; and (iv) other matters relating to the following sentenceNew Securities. Each Investor shall have the right (but no obligation) to, PubCo within thirty (on its own behalf 30) days from the date of receipt of any such First Participation Notice, purchase up to such Investor’s Pro Rata Share of such New Securities upon the terms and on behalf conditions specified in the First Participation Notice by giving written notice to the Company, stating therein the quantity of each of its SubsidiariesNew Securities to be purchased (not to exceed such Investor’s Pro Rata Share) grants (the “Preemptive Rights”). If any Investor fails to NB the so respond in writing within such thirty (30) day period, then such Investor’s right to purchase up its Pro Rata Share of such New Securities hereunder shall be forfeited, but such Investor shall not be deemed to its Allotment of forfeit any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell right with respect to any Person in a primary other issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive New Securities.
(ii) PubCo If any Investor fails or declines to exercise its Preemptive Rights or does not exercise its Preemptive Rights in full in accordance with Section 4.2(i) above, the Company shall promptly give written notice (an the “Issuance Second Participation Notice”) to NB of any proposed issuance or sale of other Investors who exercised in full their Preemptive Securities within five Business Days following any meeting Rights (the “Oversubscription Participants”) in accordance with Section 4.2(i) above, describing the following: (i) the number of the Board or governing body remaining New Securities available for oversubscription and (ii) the list of Oversubscription Participants. Each Oversubscription Participant shall have the right (but no obligation) to, within ten (10) days from the date of the applicable Subsidiary at which any such issuance or sale Second Participation Notice (a the “Subject IssuanceSecond Participation Period”) is approved. The Issuance Notice shall set forth , together with the material terms and conditions First Participation Period, the “Participation Period”), notify the Company of its desire to purchase more than its Pro Rata Share of the proposed issuance or saleNew Securities, stating the number of the additional New Securities it proposes to purchase (the “Additional Number”). If, as a result thereof, such oversubscription exceeds the total number of the remaining New Securities available for purchase, each Oversubscription Participant will be cut back by the Company with respect to its oversubscription to such number of remaining New Securities equal to the lesser of (x) the Additional Number and (y) the product obtained by multiplying (i) the number of the remaining New Securities available for subscription by (ii) a fraction, the numerator of which is the number of Ordinary Shares on an as-converted basis held by such Oversubscription Participant and the denominator of which is the total number of Ordinary Shares on an as-converted basis held by all the Oversubscription Participants.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right If any change is made to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth or conditions specified in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance First Participation Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase , or if the Preemptive Securities described in Company has not consummated the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase sale of such Preemptive Securities.
New Securities within ninety (iv90) Following day period after the expiration of the Exercise Participation Period, PubCo or its applicable Subsidiary shall be free to complete then the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary Company shall not thereafter issue or sell any Preemptive New Securities without again first again offering such securities New Securities to NB in accordance with the procedures set forth in Investors pursuant to this Section 2.3(f)4.2.
(viv) The closing Notwithstanding anything to the contrary in these Articles, and subject to the Applicable Securities Law, the Company will grant and issue an option to each Series F Investor, each Investor whose appointee remains a director of any the Board, each Investor whose appointee remains an Observer and each Investor that holds 5% or more of the total issued shares of the Company immediately prior to the completion of the IPO (each such Investor, a “Major Investor”), pursuant to which each such Major Investor and/or its respective designated Affiliate is entitled to, as a cornerstone investor or as a placee of the IPO, purchase its Pro Rata Share of Preemptive Securities the Ordinary Shares (or securities of the Company representing the Ordinary Shares) to be offered by NB the Company for sale in the IPO at the same offering price per share at which the securities offered in the IPO are being offered to the public (the “IPO Anti-dilution Right”). All shares of the Company held by an Investor and its Affiliates shall be aggregated together for the purpose of determining the availability of the IPO Anti-dilution Right for such Investor under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo4.2(iv). Each of PubCo or Major Investor shall have the Subsidiaryright to elect to terminate its IPO Anti-dilution Right under this Section 4.2(iv) immediately before the Company files an A-1 Listing Application in connection with an IPO on Hong Kong Stock Exchange. Notwithstanding anything to the contrary in these Articles, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions for purpose of this Section 2.3(f4.2(iv), in “Pro Rata Share” of a Major Investor shall mean the event that ratio of (a) the issuance number of Ordinary Shares on an as-converted basis held by PubCo or any Subsidiary such Investor, to (b) the total number of Preemptive Securities Ordinary Shares on an as-converted basis held by all Shareholders immediately prior to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules the completion of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)IPO.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Samples: Convertible Note Subscription Agreement (ZKH Group LTD)
Preemptive Right. (ia) Subject If, at any time after the date of this Agreement, the Board determines in good faith that the Company should seek additional capital by equity financing, the Company may seek such additional equity capital and propose to issue or sell any Preemptive Securities to a third party or a Qualified Member (or any Affiliate thereof, including, in the following sentencecase of TAO, PubCo (on its own behalf and on behalf of each MSGE or any of its Subsidiaries) grants in compliance with the terms of this Section 1.4. Each Qualified Member shall have the right, but not the obligation, to NB purchase from the Company (the “Preemptive Right”), on the same terms and conditions (including at the same price per Preemptive Security) set forth in the Preemptive Rights Notice (as defined below) and before any third party, up to its pro rata portion of such Preemptive Securities so that the percentage obtained by dividing the number of Preemptive Securities that such Qualified Member is entitled to purchase by the total number of Preemptive Securities is equal to the Percentage Share of such Qualified Member. Each Qualified Member shall have the right to purchase up assign its Preemptive Right to its Allotment of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue Permitted Transferees without the consent of the Company or sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportions, the rights granted pursuant to this Section 2.3(f) shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securitiesother Members.
(iib) PubCo In connection with any Preemptive Right, the Company shall, by written notice and before binding discussions with any third party (a “Preemptive Rights Notice”), provide an offer to sell to each Qualified Member that number of Preemptive Securities of any proposed issuance in accordance with Section 1.4(c). Any Preemptive Rights Notice shall give include the applicable purchase price per Preemptive Security, the aggregate amount of Preemptive Securities offered, the number of Preemptive Securities offered to such Qualified Member in accordance with Section 1.4(a), the proposed closing date and time for the issuance thereof (which shall be no less than twenty-five (25) days from the date of such notice), a summary of the material rights and obligations of the Preemptive Securities and any other material terms and conditions of the offer.
(c) Within twenty (20) days from the date of receipt of a Preemptive Rights Notice, any Qualified Member wishing to exercise its Preemptive Right concerning the Preemptive Securities referred to therein shall deliver written notice (an “Issuance Exercise Notice”) to NB the Company setting forth the number of Preemptive Securities that such Qualified Member commits to purchase (which may specify that such Qualified Member commits to purchase a number of Preemptive Securities in excess of its pro rata share (based on its Percentage Share) in the event any proposed other Qualified Member(s) fail(s) to give an Exercise Notice for the entire amount of Preemptive Securities it is entitled to purchase hereunder). Any Qualified Member that fails to give the Company an Exercise Notice during the foregoing twenty (20)-day period after receipt of a Preemptive Rights Notice shall be deemed to have forfeited such Qualified Member’s right to acquire the Preemptive Securities offered pursuant to such Preemptive Rights Notice.
(d) The closing of the issuance or sale of Preemptive Securities with respect to any Qualified Member that duly gives an Exercise Notice shall occur on the date and at the place specified by the Company in the Preemptive Rights Notice. In the event that such a closing does not occur within five Business Days following any meeting one hundred and twenty (120) days of the Board or governing body delivery of a Preemptive Rights Notice, the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice Company shall set forth repeat the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities procedure set forth in such Issuance Notice on the terms Sections 1.4(a), 1.4(b) and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f1.4(c) with respect to the purchase of such Preemptive Securities.
(iv) Following the expiration of the Exercise Period. Subject to Section 4.1(d)(iii), PubCo or its applicable Subsidiary shall be free to complete the proposed issuance or sale of any such Preemptive Securities described in that are not acquired by any Qualified Members may be issued to a third party on substantially the applicable Issuance Notice on same terms not materially less favorable to PubCo or its applicable Subsidiary than and conditions (including the same price per Preemptive Security) as those set forth in the Issuance Preemptive Rights Notice. Any .
(e) Notwithstanding anything to the contrary in this Agreement:
(i) no Qualified Member (or other Person) shall have a right to purchase Preemptive Securities pursuant to this Section 1.4 if such issuance purchase would violate any applicable securities laws (whether or sale must be closed on or before a deadline (which not such violation may be the occurrence cured by a filing of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 days from the date the Issuance Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, a registration statement or any other purchaserspecial disclosure, must but allowing for any available exemptions that do not impose any requirement to provide a disclosure document to the general public); provided, however, that in the event applicable securities laws change after the date of this Agreement so as to provide an exemption therefrom that would be satisfied by providing the Qualified Members with, in addition to information otherwise required to be provided to them pursuant to this Section 1.4, financial statements otherwise prepared by the Company in the ordinary course of business pursuant to Section 3.5 or any other information prepared or delivered to any other purchaser of such securities, then the Company shall use commercially reasonable efforts to obtain such exemption; and
(ii) (x) in the event there is a Cash Flow Deficiency or Credit Agreement Default pursuant to clause (i) of the definition of such term, the time periods referred to in this Section 1.4 shall be reduced to the minimum extent necessary so that such Cash Flow Deficiency or Credit Agreement Default shall not occur and such periods shall in any event expire at least equal five (5) Business Days prior to the actual occurrence of such Cash Flow Deficiency or higher than Credit Agreement Default pursuant to clause (ii) of the purchase price described definition of such term; provided, however, that subject to the foregoing, the Company or TAO, as applicable, shall use commercially reasonable efforts to comply with the terms of this Section 1.4 under a revised timeline, and (y) in the event the applicable Issuance Notice. In Cash Flow Deficiency or Credit Agreement Default pursuant to clause (ii) of the event PubCo or its applicable Subsidiary definition of such term, has already occurred (and has not sold such Preemptive Securities at or prior been cured), the time periods referred to such deadline, PubCo or its applicable Subsidiary in this Section 1.4 shall not thereafter issue in any way delay the Board’s actions to cure such Cash Flow Deficiency or sell any Preemptive Securities without first again offering such securities to NB Credit Agreement Default in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions terms of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f)1.4.
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Madison Square Garden Entertainment Corp.)
Preemptive Right. Notwithstanding Borrower's LLC Agreement (ias defined in the Assignment Agreement), upon the assignment of the Membership Interests (as defined in the Assignment Agreement) Subject to the following sentenceLender pursuant to SECTION 3(c)(iii), PubCo (on its own behalf and on behalf of each of its Subsidiaries) Borrower grants to NB Lender the preemptive right to purchase up to its Allotment Lender's Proportionate Interest (defined below) of any Preemptive Securities Membership Interests that PubCo or any of its Subsidiaries may Borrower may, from time to time issue or time, propose to sell to any Person in a primary issuance or sale. In the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportionsother person; provided, the rights granted pursuant to this Section 2.3(f) however, that Lender shall be exercisable only as to the strip of all such Preemptive Securities, and not separately as to have any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities within five Business Days following any meeting of the Board or governing body of the applicable Subsidiary at which any such issuance or sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the preemptive right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to purchase the Preemptive Securities described in the Acceptance Notice for cash, subject only to the closing of the Subject Issuance actually occurring. The failure of NB to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of NB’s rights under this Section 2.3(f) with respect to the purchase distribution by, or exchange offer of, Borrower of its securities to all of its members of any Membership Interests that is made pro rata, based on the percentage of the outstanding Membership Interests owned by each Assignor (as defined in the Assignment Agreement) and Lender. As used in this Agreement, "PROPORTIONATE INTEREST" means the quotient of the Membership Interests owned by Lender, divided by the total Membership Interests issued and outstanding. If Borrower proposes to sell securities in a transaction subject to the preemptive right granted in this Section, then Borrower shall give Lender written notice (a "PREEMPTIVE RIGHT NOTICE") of Borrower's intention, describing the type of securities to be sold and the price and general terms upon which Borrower proposes to sell such securities. If the price specified in the Preemptive Right Notice is payable in whole or in part in property (including without limitation the securities of any other issuer) other than cash, then Lender shall pay cash in lieu of such Preemptive Securities.
(iv) Following property, at the expiration fair market value of the Exercise Period, PubCo or its applicable Subsidiary such property determined in good faith by Assignors and Lender. Lender shall be free to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 have 15 days from the date the Issuance Preemptive Right Notice was given; and for the avoidance of doubt, the price at which the Preemptive Securities are sold is given to the prospective purchaser seeking notify Borrower whether Lender elects to purchase the applicable Preemptive Securities, all or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering portion of Lender's Proportionate Interest of such securities to NB in accordance with the procedures set forth in this Section 2.3(f).
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.for
Appears in 1 contract
Preemptive Right. So long as SUBSCRIBER beneficially owns at least 30% of the Shares and the common stock underlying the Purchase Option (iconsidered on a fully-diluted basis whether or not then exercisable) Subject sold to SUBSCRIBER under this Subscription Agreement, if ISSUER elects to sell, for cash, New Securities (as hereinafter defined) at any time prior to the following sentencesix-year anniversary of the date of this Subscription Agreement, PubCo (on its own behalf and on behalf of each of its Subsidiaries) grants to NB SUBSCRIBER will have the right to purchase up from ISSUER on the same terms as the proposed sale, that number of securities being offered as will maintain its then percentage ownership of ISSUER's Common Stock calculated on a fully diluted basis, but based solely on the Shares purchased hereunder and underlying the Purchase Option and not including any additional shares of Common Stock which may be owned by SUBSCRIBER. ISSUER shall give notice to its Allotment the SUBSCRIBER in writing ("ISSUER Notice") at least ten business days prior to the proposed closing date of any Preemptive Securities that PubCo or any of its Subsidiaries may from time to time issue or sell to any Person in a primary issuance or such proposed sale. In The ISSUER Notice shall describe in reasonable detail the event PubCo or a Subsidiary offers or sells Preemptive Securities as a strip of multiple Equity Securities in combination with fixed proportionsproposed sale including, without limitation, the rights granted pursuant nature and number of securities to this Section 2.3(f) be sold, the nature of such sale, the consideration to be paid, and the name and address of the prospective purchasers ("Buyer"). Upon the giving of the ISSUER Notice, SUBSCRIBER shall be have the right, but not the obligation, exercisable only as by written notice to the strip of all such Preemptive Securities, and not separately as to any component of such strip of Preemptive Securities.
(ii) PubCo shall give written notice (an “Issuance Notice”) to NB of any proposed issuance or sale of Preemptive Securities ISSUER within five Business Days following any meeting business days after receipt of the Board or governing body ISSUER Notice, to indicate to ISSUER its desire to purchase its permitted number of securities being sold in the applicable Subsidiary at which any such issuance or proposed sale (a “Subject Issuance”) is approved. The Issuance Notice shall set forth on the material same terms and conditions of as ISSUER is selling the securities in the proposed issuance or sale.
(iii) NB shall, for a period of 15 Business Days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase up to its Allotment of the Preemptive Securities set forth in such Issuance Notice on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to PubCo (a “Acceptance Notice”). The delivery of an Acceptance Notice by NB shall be a binding and irrevocable offer by NB to SUBSCRIBER will purchase the Preemptive Securities described in securities to be offered and purchased under this section at the Acceptance Notice for cash, subject only to same time as the closing of the Subject Issuance actually occurringproposed sale. The failure For purposes of NB to deliver an Acceptance Notice by the end this Section 8, "New Securities" means any shares of capital stock of the Exercise Period shall constitute a waiver ISSUER, including Common Stock and preferred stock, whether now authorized or not, and rights, options or warrants to purchase said shares of NB’s rights under this Section 2.3(fCommon Stock or preferred stock of the ISSUER, and securities of any type whatsoever that are, or may become, convertible into said shares of Common Stock or preferred stock; provided, however, "New Securities" does not include (i) with respect the shares of Common Stock issuable upon exercise of the Purchase Option, (ii) securities issuable upon exercise or conversion securities outstanding on the date hereof, (iii) securities offered to the purchase of such Preemptive Securities.
public generally pursuant to a registration statement under the Securities Act, (iv) Following securities issued to employees, officers or directors of, or consultants to, the expiration ISSUER, or issued or issuable to banks or other institutional lenders or lessors in connection with capital asset leases or borrowings for the acquisition of capital assets, landlords, or other providers of goods and services to the ISSUER, if pursuant to any arrangement approved by the board of directors of the Exercise PeriodISSUER (including securities issued upon exercise or conversion of any such securities), PubCo or its applicable Subsidiary shall be free (v) securities issued for cash in any private placement by ISSUER subject to complete the proposed issuance or sale of Preemptive Securities described in the applicable Issuance Notice on terms not materially less favorable to PubCo or its applicable Subsidiary than those set forth in the Issuance Notice. Any such issuance or sale must be closed on or before a deadline (which may be the occurrence of an event or date certain) for closing such issuance or sale set forth in the applicable Issuance Notice, not to exceed 180 agreement entered into within ten business days from after the date of this Subscription Agreement (including securities issued upon exercise or conversion of any such securities), or (vi) any issuance of capital stock of the Issuance Notice was given; and for ISSUER upon the avoidance exercise or conversion of doubtderivative securities, the price at issuance of which triggered the Preemptive Securities are sold to the prospective purchaser seeking to purchase the applicable Preemptive Securities, or any other purchaser, must be at least equal to or higher than the purchase price described in the applicable Issuance Notice. In the event PubCo or its applicable Subsidiary has not sold such Preemptive Securities at or prior to such deadline, PubCo or its applicable Subsidiary shall not thereafter issue or sell any Preemptive Securities without first again offering such securities to NB in accordance with the procedures pre- emptive rights set forth in this Section 2.3(f)8.
(v) The closing of any purchase of Preemptive Securities by NB under this Section 2.3(f) shall be consummated at such location, date, and time as specified by PubCo. Each of PubCo or the Subsidiary, on the one hand, and NB, on the other hand, shall take all such other actions (including, without limitation, entering into additional agreements) as may be reasonably necessary to consummate the purchase and sale of the Preemptive Securities.
(vi) Notwithstanding the foregoing provisions of this Section 2.3(f), in the event that the issuance by PubCo or any Subsidiary of Preemptive Securities to NB would require a vote of PubCo’s stockholders (whether because of applicable Law or rules of the stock exchange on which the Class A Shares are listed, or otherwise), the foregoing provisions of this Section 2.3(f) will not apply, and instead PubCo and NB will cooperate in good faith to the extent reasonably feasible to provide for the issuance of an alternative security to NB with substantially the same economic terms as the Preemptive Securities proposed to be issued but that would not require any vote of PubCo’s stockholders. Furthermore, in the event the Board determines in good faith there is a reasonable business need to consummate an issuance of Preemptive Securities without first complying with this Section 2.3(f), PubCo or the Subsidiary may issue or sell Preemptive Securities to one or more Persons without first complying with the terms of Section 2.3(f), so long as, as promptly as is reasonably practicable following such sale (and in any event within ten (10) Business Days of such sale), at PubCo’s or the Subsidiary’s election, (A) the purchasers of such Preemptive Securities shall offer to sell to NB the portion of such purchased Preemptive Securities that equals NB’s applicable Allotment or (B) PubCo or the Subsidiary shall offer to issue an incremental amount of Preemptive Securities to NB sufficient to constitute NB’s applicable Allotment had PubCo or the Subsidiary complied with Section 2.3(f) and (C) in each case, at a purchase price no more, and on terms no less favorable to NB, than those applicable to such purchasers, using a process substantially similar to that set forth in this Section 2.3(f).
(vii) The rights of NB under this Section 2.3(f) shall terminate upon the first date that the NB First Ownership Threshold is no longer satisfied.
Appears in 1 contract
