Preemptive Rights. (a) The LLP shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Notice. (b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right. (c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5. (d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5. (e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance. (f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 2 contracts
Samples: Limited Liability Partnership Agreement, Limited Liability Partnership Agreement (Delphi Automotive PLC)
Preemptive Rights. Each Investor shall have preemptive rights with respect to any future equity issuances by the JV Entities other than equity issuances (ai) The LLP shall in connection with an employee stock option plan or other bona fide employment compensation arrangement that is approved by the Board of such JV Entity, (ii) as consideration in connection with a bona fide acquisition by the JV Entity or any of its Subsidiaries or (iii) pursuant to an IPO. Accordingly, prior to issuing any additional equity interests in the JV Entity to any Person, except as provided above, the JV Entity must give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written Investor a notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior JV Entity’s intention to the proposed issuance datemake such issuance. The Issuance Notice shall specify describe the number and class type of such New Securities additional equity interests, and the price at and terms upon which it proposes to issue such New Securities are to be issued and additional equity interests. Each Investor shall have fifteen (15) Business Days (the other material terms and conditions “Issuance Notice Window”) from the date of receipt of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled Issuance Notice to agree to purchase up to its Preemptive Share pro rata portion (based on each Party’s then Percentage Interest in such JV Entity) of the New Securities proposed to be issued at such additional equity interests for the price and on upon the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may Notice by giving written notice to the JV Entity and stating therein the quantity of additional equity interests elected to be purchased. Any issuance to an Investor pursuant to an exercise of its preemptive rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP 2.4 shall be consummated within ten fifteen (1015) Business Days of receipt of following the Issuance NoticeNotice Window. A delivery of such notice In the event that any Investor fails to exercise in full the preemptive rights set forth in this Section 2.4 within the Issuance Notice Window, the JV Entity shall have fifteen (which notice shall specify 15) Business Days thereafter to issue the number (or amount) of New Securities additional interests not elected to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase 2.4 at the price and upon terms and conditions that are not less no more favorable to the LLP purchasers than those specified in the Issuance Notice, provided that, if . In the event that the JV Entity has not sold such issuance is subject to regulatory approval, additional equity interests within such 100-day period shall be extended until the expiration of five subsequent fifteen (515) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuanceDay period, the LLP JV Entity shall not thereafter issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to or sell any third party) and register additional equity interests without first offering such New Securities additional equity interests in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth manner provided in this Section 12.5.
(d) 2.4. The Class B Holders hereby acknowledge obligations of the JV Entities and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (rights of the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP Investors under this Section 12.52.4 shall terminate upon an IPO of that JV Entity.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 2 contracts
Samples: Framework Agreement, Framework Agreement (Memc Electronic Materials Inc)
Preemptive Rights. (a) The LLP 5.1 After Closing and subject to Section 5.5, PubCo shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) Subscriber prior written notice (an “Issuance Notice”) of any proposed issuance by the LLP PubCo of any New Securities (i) PubCo Ordinary Shares, (ii) securities convertible into or exchangeable for PubCo Ordinary Shares, (iii) any options, warrants or other rights to acquire PubCo Ordinary Shares and (iv) any depository receipts or similar instruments issued in respect of PubCo Ordinary Shares (collectively, the “PubCo Securities”) at least five twenty (520) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New the PubCo Securities and to be issued, the price at which such New PubCo Securities are to be issued issued, and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder Subscriber shall be entitled to subscribe for and purchase up to its Preemptive Share of the New PubCo Securities proposed to be issued in accordance with this Section 5 at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under 5.2 Pursuant to this Section 12.5 5, Subscriber may elect to subscribe for and purchase up to such portion of the PubCo Securities equal to its Shareholding Percentage as of the date of the Issue Notice, by delivering written notice to PubCo (the “Exercise Notice”) of its election to subscribe for and purchase such New PubCo Securities to the LLP within ten (10) Business Days of following receipt of the Issuance Notice. A delivery of such notice (which notice shall specify , specifying the number (or amount) of New PubCo Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) it, which upon delivery to the PubCo shall constitute a binding agreement of such Holder Subscriber to subscribe for and purchase, and PubCo to issue, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New PubCo Securities specified in such Holder’s noticethe Exercise Notice. If, at the termination expiry of such ten (10) Business Day10)-Business-Day period, a Class B Holder Subscriber shall not have exercised its rights delivered an Exercise Notice to purchase its Preemptive Shares of such New SecuritiesPubCo, the Holder Subscriber shall be deemed to have waived all of its rights under this Section 12.5 5 with respect to, and only with respect to, to the purchase of such New PubCo Securities. If less than 100% For the purposes of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice 5, “Shareholding Percentage” means, as of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At , a fraction, the consummation numerator of which is the aggregate number of PubCo Ordinary Shares and PubCo Ordinary Shares represented by or issuable upon conversion or exercise of other PubCo Securities beneficially owned by Subscriber and its affiliates collectively as of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5date, and each Class B Holder consents to such issuance, provided that, the denominator of which is the aggregate number of issued and outstanding PubCo Ordinary Shares and PubCo Ordinary Shares represented by or issuable upon conversion or exercise of other PubCo Securities issued and outstanding as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuancedate.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 2 contracts
Samples: Subscription Agreement (Model Performance Acquisition Corp), Subscription Agreement (Model Performance Acquisition Corp)
Preemptive Rights. Subject to Sections 3.1 and 3.2, the Company shall not issue, or cause any of its Subsidiaries to issue any Equity Securities, except in accordance with the following procedures:
(a) The LLP Company shall give deliver to each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) Preemptive Shareholder a written notice (an a “Issuance Preemptive Offer Notice”) which shall (i) state the intention of the Company or any proposed issuance by of its Subsidiaries to issue Equity Securities to one or more Persons, the LLP amount and type of any New Equity Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued (the “Issuance Securities”), the purchase price therefor and a summary of the other material terms and conditions of the issuanceproposed issuance and (ii) offer each of the Preemptive Shareholders the option to acquire all or any part of the Issuance Securities (the “Preemptive Offer”). If any proposed purchaser will purchase any The Preemptive Offer shall remain open and irrevocable for the period set forth below (and, to the extent the Preemptive Offer is accepted during such New Securitiesperiod, each Class B Holder until the consummation of the issuance contemplated by the Preemptive Offer). Each Preemptive Shareholder shall be entitled have the right and option, for a period of fifteen (15) Business Days after delivery of the Preemptive Offer Notice (the “Preemptive Acceptance Period”), to elect to purchase up to all or any portion of its or his Preemptive Share Percentage of the New Issuance Securities proposed to be issued (and any of its or his Affiliates’ Preemptive Percentage of the Issuance Securities not purchased by such Affiliates) at the purchase price and on the other terms and conditions specified stated in the Preemptive Offer Notice. Such acceptance shall be made by a Preemptive Shareholder by delivering a written notice to the Company within the Preemptive Acceptance Period specifying the maximum number of shares of the Issuance NoticeSecurities such Preemptive Shareholder will purchase.
(b) A Class B Holder If valid acceptance shall not be received pursuant to Section 3.5(a) above with respect to all of the Issuance Securities offered pursuant to the Preemptive Offer Notice, then the Company or its Subsidiary, as applicable, may exercise issue all or any portion of such Issuance Securities so offered and not so accepted, at a price not less than the price, and on terms not more favorable to the purchaser thereof than the terms, stated in the Preemptive Offer Notice at any time within sixty (60) days after the expiration of the Preemptive Acceptance Period (the “Issuance Period”). In the event that any Issuance Securities are not so issued by the Company during the Issuance Period, the right of the Company or its rights under Subsidiary, as applicable, to issue such unsold Issuance Securities shall expire and the obligations of this Section 12.5 by delivering notice 3.5 shall be reinstated and such securities shall not be offered unless first reoffered to the Preemptive Shareholders in accordance with this Section 3.5.
(c) All sales of its election to purchase such New Issuance Securities to the LLP Preemptive Shareholders subject to any Preemptive Offer Notice shall be consummated contemporaneously on the later of (i) a mutually satisfactory Business Day within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until after the expiration of five the Preemptive Acceptance Period or (5ii) the fifth (5th) Business Days after all such Day following the receipt of any regulatory approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of applicable to such issuance, or at such other time and/or place as the LLP Company and the applicable Preemptive Shareholders may otherwise agree. The delivery of certificates or other instruments evidencing such Issuance Securities shall issue the New Securities to be purchased made by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register Company or its Subsidiary, as applicable, on such New Securities in the name of each such Holder (and to any third party), date against payment by such Holder (and to any third party) of the purchase price for such New Issuance Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that Notwithstanding anything to the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities contrary in advance of complying with the requirements of this Section 12.53.5, and each Class B Holder consents the pre-emptive right hereunder shall not apply to such issuanceany sale, provided that, as promptly as practicable thereafter, either offer or issuance of Equity Securities: (i) to employees, officers or consultants pursuant to any ESOP or similar share-based plan approved by the LLP complies Board in accordance with the requirements of this Section 12.5 with respect thereto or Company’s Charter Documents, (ii) in connection with any exercise of conversion rights by any Person holding any convertible securities of the Purchasing Member offers Company not in contravention of the Transaction Documents or the Company’s Charter Documents, or (iii) any Equity Securities issued in connection with any share split, share dividend or any share subdivision or other Class B Holders similar event in which all shareholders of the right Company are entitled to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5participate on a pro rata basis.
(e) The LLP Investors’ rights under this Section 3.5 shall not be under any obligation to consummate any proposed issuance suspended if and as long as, solely as a result of New Securities, nor shall there be any liability on the part exercise of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to rights under this Section 12.5 for whatever reason3.5, regardless the Investors in aggregate own legally or beneficially more voting power of whether it shall have delivered an Issuance Notice in respect the Company than the voting power of such proposed issuancethe Company legally or beneficially owned by the Founder and his Affiliates.
(f) Notwithstanding the foregoing, no Group Company shall be permitted to issue any Equity Securities to an Investor Competitor without the provisions contained in this Section 12.5 prior written consent of Alibaba; provided, however, that the foregoing restriction shall not apply to any Initial Public Offering made pursuant offerings or sale of Equity Securities to public investors where the Company is not aware that the transferee is an effective registration statement filed under the Securities ActInvestor Competitor.
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Alibaba Group Holding LTD)
Preemptive Rights. (ai) If the Company proposes to issue any additional Membership Interests to any Person after the date hereof (“Additional Membership Interests”), the Company shall, before such issuance, deliver to each Member a written notice offering to issue to the Members such Additional Membership Interests upon the terms set forth in this Section 6(c) (the “Preemptive Offer Notice”). The LLP Preemptive Offer Notice shall give each Class B Holder state that is an “accredited investor” the Company proposes to issue Additional Membership Interests and shall set forth the number and terms and conditions (as defined in Rule 501(aincluding the purchase price) of Regulation D promulgated under such Additional Membership Interests. The offer (the Securities Act“Preemptive Offer”) written shall remain open and irrevocable for a period of twenty (20) business days (the “Preemptive Offer Period”) from the date of its delivery.
(ii) Each Member may accept the Preemptive Offer by delivering to the Company a notice (an the “Issuance Purchase Notice”) at any time during the Preemptive Offer Period. The Purchase Notice shall state the percentage (the “Preemptive Offer Percentage”) of any proposed Additional Membership Interests such Member desires to purchase. If the sum of all Preemptive Offer Percentage exceeds the number of Additional Membership Interests, the Additional Membership Interests shall be allocated among the Members that delivered a Purchase Notice in accordance with their respective Membership Interest at the time of the Preemptive Offer.
(iii) The issuance of Additional Membership Interests to the Members shall be made on a business day, as designated by the LLP Company, not more than sixty (60) days after expiration of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material Preemptive Offer Period on those terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance NoticeOffer not inconsistent with this Section 6(c).
(biv) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify If the number (of Additional Membership Interests exceeds the sum of all Preemptive Offer Percentages, the Company may issue such excess or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and any portion thereof on the terms and conditions specified set forth in the Issuance Notice, Preemptive Offer to any Person within ninety (90) days after expiration of the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New SecuritiesOffer Period. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, not made within such 100-day period shall be extended until the expiration of five ninety (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance90)-day period, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price restrictions provided for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.56(c) shall again become effective.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Iconic Brands, Inc.), Limited Liability Company Agreement (Iconic Brands, Inc.)
Preemptive Rights. The Company hereby grants to each Member the right to purchase such Member’s Preemptive Right Share of all (aor any part) The LLP shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five that the Company may from time to time issue after the date of this Agreement (5) Business Days prior the “Preemptive Right”). In the event the Company proposes to the proposed undertake an issuance date. The Issuance Notice shall specify the number and class of such New Securities (in a single transaction or a series of related transactions), the Company shall give to each Member written notice of its intention to issue New Securities (the “Preemptive Right Participation Notice”), describing the amount and type of New Securities, the cash purchase price and the price at general terms upon which such New Securities are it proposes to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any issue such New Securities, each Class B Holder . Each Member shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within have ten (10) Business Days from the date of receipt of any such Preemptive Right Participation Notice (the Issuance Notice. A delivery “Preemptive Right Notice Period”) to agree in writing to purchase for cash up to such Member’s Preemptive Right Share of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at for the price and on upon the terms and conditions specified in the Issuance Notice, Preemptive Right Participation Notice by giving written notice to the number (or amount) Company and stating therein the quantity of New Securities specified to be purchased (not to exceed such Member’s Preemptive Right Share). If any Member fails to so respond in writing within the Preemptive Right Notice Period, then such Holder’s notice. If, at Member shall forfeit the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights right hereunder to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase Right Share of such New Securities. If less than 100% Subject to obtaining the requisite authorization, approval or consent of any Governmental Body, the closing of any purchase by any Member pursuant to this Section 7.1 shall be consummated concurrently with the consummation of the Class B Holders issuance or sale described in the Preemptive Right Participation Notice. The Company shall have exercised their rights be free to purchase their respective Preemptive Shares complete the proposed issuance or sale of such New Securities described in the Preemptive Right Participation Notice with respect to any New Securities not elected to be purchased pursuant to this Section 7.1 in accordance with the terms and conditions set forth in the Preemptive Right Participation Notice (except that the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased to be issued or sold by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder Company may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and reduced upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased approval by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in Board, which shall require the name approval of each such Holder (and to any third partyInvestor Director so long as the Investor Member holds a Common Percentage Interest of at least 30.0%), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (FirstEnergy Transmission, LLC), Purchase and Sale Agreement (Firstenergy Corp)
Preemptive Rights. The Company hereby grants to each Member the right to purchase such Member’s Preemptive Right Share of all (aor any part) The LLP shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five that the Company may from time to time issue after the Effective Date (5the “Preemptive Right”); provided, however, that the Preemptive Right shall not apply with respect to New Securities issues or to be issued in any public offering or pursuant to failures to fund Additional Funding Requirements or as otherwise specifically provided herein. In the event the Company proposes to undertake an issuance of New Securities (in a single transaction or a series of related transactions), the Company shall give to each Member written notice of its intention to issue New Securities (the “Preemptive Right Participation Notice”), describing the amount and type of New Securities, the cash purchase price and the general terms upon which it proposes to issue such New Securities. Each Member shall have twenty (20) Business Days prior days from the date of receipt of any such Preemptive Right Participation Notice (the “Preemptive Right Notice Period”) to the proposed issuance date. The Issuance Notice shall specify the number and class agree in writing to purchase for cash up to such Member’s Preemptive Right Share of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at for the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on upon the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, Right Participation Notice by giving written notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) Company and stating therein the sum quantity of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by (not to exceed such Electing MemberMembers’ Preemptive Right Share) by an Electing as well as the maximum amount of New Securities it would purchase. If any Member fails to so respond in writing within the Preemptive Right Notice Period, then such Member shall constitute a binding agreement forfeit the right hereunder to purchase its Preemptive Right Share of such New Securities and the Company will allocate the rights to purchase such New Securities to any other Member that indicated it would purchase New Securities in excess of its Preemptive Right Share based on their relative Preemptive Right Shares. Subject to purchaseobtaining the requisite authorization, at approval or consent of any Governmental Body, the price and on closing of any purchase by any Member pursuant to this Section 7.1 shall be consummated concurrently with the consummation of the issuance or sale described in the Preemptive Right Participation Notice. The Company shall be free to complete the proposed issuance or sale of New Securities described in the Preemptive Right Participation Notice with respect to any New Securities not elected to be purchased pursuant to this Section 7.1 in accordance with the terms and conditions specified set forth in the Issuance Notice, the number Preemptive Right Participation Notice (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities except that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration amount of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased issued or sold by the Class B Holders should they exercise their preemptive rights pursuant Company may be reduced). If a Member indicates in its response to this Section 12.5 (and to any third party) and register such a Preemptive Right Participation Notice that it shall purchase New Securities in the name of each but then does not fund such Holder (and to any third party)amounts, against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it Member shall again comply with the procedures set forth in this Section 12.5be a Defaulting Member.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Nisource Inc.), Limited Liability Company Agreement (Nisource Inc.)
Preemptive Rights. Prior to the issuance of any Parity Securities or Senior Securities, the Partnership shall, by written notice to the Class A Preemptive Rights Holders (a) The LLP the “Notice of Issuance”), offer to sell such Parity Securities or Senior Securities to the Class A Preemptive Rights Holders on terms and subject to conditions determined by the General Partner to be reasonable, which offer shall give be made on a pro rata basis such that each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B A Preemptive Rights Holder shall be entitled to purchase up a portion of such Parity Securities or Senior Securities equal to its the quotient of (i) the number of Class A Preferred Units held by such Class A Preemptive Share Rights Holder on the date of the New Securities proposed to be issued at Notice of Issuance divided by (ii) the price and aggregate number of Class A Preferred Units held by all Class A Preemptive Rights Holders on the other terms and conditions specified in date of the Notice of Issuance Notice.
(bor as the Class A Preemptive Rights Holders may at such time otherwise agree among themselves); provided, that the offer of such Parity Securities or Senior Securities shall not be on a basis less favorable to the Class A Preemptive Rights Holders than is contemplated with respect to any purchaser thereof who is not a Class A Preemptive Rights Holder; provided, further, that (A) if any Class A Class B Preemptive Rights Holder may exercise its rights under this Section 12.5 by delivering fails to provide written notice of its election intent to exercise its right to purchase such New Parity Securities to the LLP or Senior Securities within ten fifteen (1015) Business Days of receipt the Notice of the Issuance Notice. Issuance, such Class A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Rights Holder shall be deemed to have waived any and all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective such securities in such transaction and (B) if any Class A Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall Rights Holder waives or is deemed to have exercised waived its right to purchase 100% of such Electing Member’s Preemptive Share of such New Parity Securities or Senior Securities, notice of the aggregate number other Class A Preemptive Rights Holders shall be entitled to exercise such right as if such right was initially granted to such Class A Preemptive Rights Holders. Notwithstanding the foregoing, in no event shall the Partnership be obligated to offer to sell Parity Securities or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Senior Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. Class A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Preferred Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 5.12(g) in connection with any (and 1) securities issued to any third party) and register the owners of another entity in connection with the acquisition of such New Securities in entity by the name Partnership by merger, consolidation, sale or exchange of each such Holder (and to any third party)securities, against payment by such Holder (and to any third party) purchase of substantially all of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerationsassets, or other reasonsreorganization whereby the Partnership acquires more than 50% of the voting power or assets of such entity; (2) Common Units or other Junior Securities (including options to purchase Common Units or other Junior Securities and Common Units or other Junior Securities issued upon exercise of such options) issued to employees, may request that a Class B Holder (consultants or directors of the “Purchasing Member”)Partnership or the General Partner pursuant to plans, acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto programs or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered agreements approved by the LLP under this Section 12.5.
Board; (e3) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Senior Securities issued pursuant to this Section 12.5 for whatever reasonany dividend, regardless of whether it shall have delivered an Issuance Notice split, combination or other reclassification in respect of such proposed issuance.
Senior Securities or pursuant to a recapitalization or reorganization of the Partnership in respect of Senior Securities; or (f4) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply Parity Securities issued pursuant to any Initial Public Offering made dividend, split, combination or other reclassification in respect of Parity Securities or pursuant to an effective registration statement filed a recapitalization or reorganization of the Partnership in respect of Parity Securities provided in each case under this clause (4) the Securities ActClass A Preferred Units are given ratable treatment.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (NGL Energy Partners LP), Class a Convertible Preferred Unit and Warrant Purchase Agreement (NGL Energy Partners LP)
Preemptive Rights. (a) The LLP Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written Preemptive Rightholder notice (an “Issuance Notice”) of any proposed issuance by the LLP Company of any New Company Securities at least five (5) Business Days 30 days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Company Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New SecuritiesSubject to Section 4.03(e) below, each Class B Holder Preemptive Rightholder shall be entitled to purchase up to its Preemptive Share Portion of the New Company Securities proposed to be issued issued, at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise Each Preemptive Rightholder who desires to purchase any or all of its rights under this Section 12.5 by delivering Preemptive Portion of the Company Securities specified in the Issuance Notice shall deliver notice to the Company (each, an “Exercise Notice”) of its election to purchase such New Company Securities to the LLP within ten (10) 30 Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice The Exercise Notice shall specify the number (or amount) of New Company Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) such Preemptive Rightholder and shall constitute exercise by such Preemptive Rightholder of its rights under this Section 4.03 and a binding agreement of such Holder it to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Company Securities specified in such Holder’s noticethe Exercise Notice. If, at the termination of such ten (10) 30-Business Day-Day period, a Class B Holder any Preemptive Rightholder shall not have exercised its rights delivered an Exercise Notice to purchase its the Company, such Preemptive Shares of such New Securities, the Holder Rightholder shall be deemed to have waived all of its rights under this Section 12.5 Section 4.03 with respect to, and only with respect to, to the purchase of such New Company Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at Promptly following the termination of such five (5) 30-Business Day-Day period, the Company shall deliver to each Preemptive Rightholder a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived copy of all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightExercise Notices it received.
(c) The LLP Company shall have 100 120 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Company Securities that the Class B Holders Shareholders have not elected not to purchase to a third party at the price and upon terms and conditions that are not less favorable to the LLP Company than those specified in the Issuance Notice, ; provided that, if such issuance is subject to regulatory approval, such 100120-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 210 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP Company proposes to issue any class of New such Company Securities after such 100120-day period (or on other terms less favorable to the issuer210-day) period, it shall again comply with the procedures set forth in this Section 12.5Section 4.03.
(d) The Class B Holders hereby acknowledge At the consummation of the issuance of such Company Securities, the Company shall deliver a copy of its register of members updated to reflect such issuance and agree that issue certificates representing the LLPCompany Securities to be purchased by each Preemptive Rightholder exercising preemptive rights pursuant to this Section 4.03 registered in the name of such Preemptive Rightholder, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (against payment by such Shareholder of the “Purchasing Member”), acquire New purchase price for such Company Securities in advance of complying accordance with the requirements of this Section 12.5, terms and each Class B Holder consents to such issuance, provided that, conditions as promptly as practicable thereafter, either (i) specified in the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5Issuance Notice.
(e) The LLP Notwithstanding the foregoing, no Preemptive Rightholder shall not be under entitled to purchase Company Securities as contemplated by this Section 4.03 in connection with issuances of Company Securities (A) to employees or officers pursuant to any obligation to consummate employee benefit plan, employee stock option plan or similar plan, including the Excluded Issuance, (B) in connection with any proposed issuance of New Securitiesbona fide, nor shall there be any liability on arm’s-length’s direct or indirect merger, acquisition or similar transaction as duly approved by the part of Shareholders or the LLP Board pursuant to the Class B Holders if Memorandum and Articles, including the LLP has not consummated acquisition of Target Franchisees as contemplated by the Share Purchase Agreement, (C) in connection with any proposed issuance exercise of New Securities conversion rights by any Shareholder holding any Preferred Shares pursuant to this Section 12.5 for whatever reasonthe Memorandum and Articles, regardless of whether it shall have delivered an Issuance Notice or (D) in respect of such proposed issuanceconnection with any IPO Adjustment (collectively, the “Exempted Issuance”).
(f) Notwithstanding the foregoing, the The provisions contained in of this Section 12.5 Section 4.03 shall not apply to any Initial Public Offering issuance of the Company Securities made relating to or in connection with any IPO Adjustment pursuant to Section 6.02 and shall terminate upon the consummation of an effective registration statement filed under the Securities Actinitial Public Offering.
Appears in 2 contracts
Samples: Shareholder Agreement (ZTO Express (Cayman) Inc.), Shareholder Agreement (ZTO Express (Cayman) Inc.)
Preemptive Rights. At any time prior to a Public Company Transition Date, except in connection with any initial public offering, a SPAC Transaction or any transaction that would result in a Change of Control or as otherwise expressly contemplated by this Agreement, Parent Entity and Holdings shall not issue any Equity Interests unless such issuance is in compliance with the following procedures:
(a1) The LLP Prior to the date of a proposed issuance of any Equity Interests, Parent Entity or Holdings shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) deliver notice of Regulation D promulgated under the Securities Act) written notice such proposed issuance (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance dateAgent. The Issuance Notice shall specify (i) the number of Equity Interests and class of such New Securities Equity Interests which Parent Entity or Holdings proposes to issue, the consideration to be received therefor and the price at date on which such New Securities are to consideration for such Equity Interests shall be issued paid (which date shall be no less than thirty (30) days from the date of delivery of the Issuance Notice); (ii) all of the material terms and conditions, including the other material terms and conditions of payment, upon which Parent Entity or Holdings proposes to issue such Equity Interests; (iii) the issuance. If any proposed purchaser will proportionate number of such Equity Interests that Agent shall have the option to purchase any such New Securitiesunder this Section 6.20, each Class B Holder which proportionate number shall be entitled to purchase up to its Preemptive Share no less than ten percent (10%) of the New Securities number of Equity Interests which Parent Entity or Holdings proposes to issue (such proportionate number for Agent, its “Pro-Rata-Share”); and (iv) where the proposed to be issued at purchasers of such Equity Interests are known, the price and on the other terms and conditions specified in the Issuance Noticeidentities of such proposed purchasers.
(b2) A Class B Holder may exercise its rights under this Section 12.5 Upon delivery of an Issuance Notice, Agent shall have the right (exercisable by delivering delivery to Parent Entity or Holdings, as applicable, of written notice within the thirty (30) day period following the date of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt delivery of the Issuance Notice. A delivery ), to purchase its Pro-Rata-Share of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, offering at the price and on the terms and conditions contained therein. The foregoing preemptive rights shall be deemed waived by Agent if it does not exercise its preemptive right and pay for the Equity Interests within the period of time prescribed by the Issuance Notice in accordance with this Section 6.20.
(3) Notwithstanding anything to the contrary contained in this Section 6.20, if the consideration to be received by Parent Entity or Holdings, as applicable, with respect to the issuance of Equity Interests specified in the Issuance NoticeNotice is other than cash to be paid upon the issuance of the Equity Interests (that is, if the number (consideration would constitute so-called “in-kind” property, such as membership interests or amount) other Equity Interests), or if security is to be provided to secure the payment of New Securities any deferred portion of the purchase price, then Agent may purchase such Equity Interests by making a cash payment at the time of the closing specified in such Holder’s notice. Ifthe offer, at in the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% amount of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares reasonably equivalent value of such New Securities (the “Nonin-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions kind” property specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder Notice and/or may provide reasonably equivalent security to that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified provided in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Loan and Security Agreement (Katapult Holdings, Inc.)
Preemptive Rights. The Company shall not issue any securities in any one offering or a series of related offerings, except in accordance with the following procedures:
(a) The LLP Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under deliver to the Securities Act) Purchaser a written notice (an “Issuance Offer Notice”), which shall (i) state the Company’s intention to issue securities to one or more persons or entities, the amount and type of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are securities to be issued (the “Issuance Stock”), the purchase price therefor, and a summary of the other material terms and conditions of the proposed issuance. If , and (ii) offer the Purchaser the option to acquire all or any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to part of its Preemptive Share Percentage (as defined in section 9.1) of the New Securities proposed Issuance Stock (the “Offer”). The Offer shall remain open and irrevocable for the periods set forth below (and, to be issued the extent the Offer is accepted during such periods, until the consummation of the issuance contemplated by the Offer). The Purchaser shall have the right and option, for a period of 20 business days after delivery of the Offer Notice (the “Acceptance Period”), to accept all or any part of its Preemptive Percentage of the Issuance Stock at the purchase price and on the other terms and conditions specified stated in the Offer Notice. Such acceptance shall be made by delivering a written notice (the “Acceptance Notice”) to the Company by the Purchaser within the Acceptance Period specifying the number of shares of the Issuance NoticeStock the Purchaser will purchase (the “Accepted Shares”).
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election If effective acceptance shall not be received pursuant to purchase such New Securities section 5.9(a) with respect to the LLP within ten (10) Business Days of receipt of Issuance Stock offered for sale pursuant to the Issuance Offer Notice. A delivery , the Company may issue all or any portion of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchaseIssuance Stock so offered for sale and not so accepted, at the price same price, and on terms not more favorable to the purchaser thereof than the terms and conditions specified stated in the Issuance Offer Notice, at any time within 120 days after the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% expiration of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities Acceptance Period (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase RightIssuance Period”). A Class B Holder may exercise its Additional Purchase Rights In the event all the Issuance Stock is not so issued by the Company during the Issuance Period, the right of the Company to issue such unsold Issuance Stock shall expire and the obligations of the Company under this Section 12.5 by delivering notice of its election to purchase section 5.9 shall be reinstated and such additional New Securities securities shall not be offered unless first re-offered to the LLP within five (5Purchaser in accordance with sections 5.9(a) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right5.9(b).
(c) The LLP All issuances of Issuance Stock to the Purchaser subject to any Offer Notice shall have 100 days from be consummated on a business day specified by notice given by the date Purchaser to the Company during the Acceptance Period, which shall be prior to the expiration of the Issuance Notice to consummate Period, or at such other time and place as the proposed issuance Company and the Purchaser may agree. The delivery of any certificates or all of other instruments evidencing such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period Stock shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased made by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register Company on such New Securities in the name of each such Holder (and to any third party), date against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5Issuance Stock.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (isection 5.9(a) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made grant, issue or sale by the Company of securities issued in connection with any stock split or stock dividend, any employee stock option plan (other than one in which Xxx Xxxxxxxxx is entitled to participate), or pursuant to an effective registration statement filed under the Securities ActTransaction Agreements.
Appears in 1 contract
Samples: Securities Purchase Agreement (Comcam International Inc)
Preemptive Rights. (a) The LLP Coeur shall have the right to purchase all or a portion of its Pro Rata Share of all Preemptive Right Equity Securities that ASM Parent may, from time to time, propose to sell and issue after the date of this Agreement.
(b) If ASM Parent proposes to sell and issue any Preemptive Right Equity Securities, it shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) Coeur a written notice (an “Issuance Notice”) of any proposed issuance by its intention, describing the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Preemptive Right Equity Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in upon which the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election proposes to purchase such New Securities to issue the LLP within ten (10) same. Coeur shall have 7 Business Days of receipt of from the Issuance Notice. A delivery giving of such notice (which notice shall specify to agree to purchase all or a portion of its Pro Rata Share of the number (or amount) of New Preemptive Right Equity Securities proposed to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at sold for the price and on upon the terms and conditions specified in such notice by giving written notice to ASM Parent and stating therein the Issuance Noticequantity of Preemptive Right Equity Securities to be purchased.
(c) If Coeur fails to exercise in full its preemptive rights as set forth in this Section 3 ASM Parent shall have 90 days, beginning after the number (or amount) expiration of New the 7-Business Day period referred to in Section 3 to sell the Preemptive Right Equity Securities specified in such Holderrespect of which Coeur’s notice. Ifrights of first offer were not exercised, at the termination same or a greater price, and upon such terms and subject to such conditions (other than price) that, when taken as a whole, are no more favorable to the purchasers thereof than those specified in ASM Parent’s notice to Coeur pursuant to this Section 3. If ASM Parent has not sold such Preemptive Right Equity Securities within such 90-day period, ASM Parent shall not thereafter issue or sell any such Preemptive Right Equity Securities without first offering such securities to Coeur in accordance with this Section 3.
(d) Notwithstanding Sections 3(a) to (c) above, equity issuances pursuant to ASM Parent’s previously filed at-the-market prospectus supplement dated January 27, 2021 (the “ATM”) shall not require prior written notice to Coeur. Within five Business Days of the end of a fiscal quarter in which ASM Parent issued ASM Common Shares pursuant to the ATM (the “Applicable Quarter”), ASM Parent shall provide written notice to Coeur specifying the number of ASM Common Shares issued during the Applicable Quarter pursuant to the ATM (the “ATM Issued Shares”) and the average price per share received by ASM Parent before commissions (the “ATM Average Price”). Coeur shall have 7 Business Days from the giving of such ten (10) notice to agree to purchase all or a portion of its Pro Rata Share of the ATM Issued Shares and shall delivery a written notice to ASM Parent no later than the conclusion of such 7-Business Day-Day period, a Class B Holder shall not have exercised its rights specifying how many ASM Common Shares it elects to purchase its Preemptive Shares (an “ATM Purchase Notice”). On the date that is five Business Days following delivery by Coeur to ASM Parent of an ATM Purchase Notice, ASM Parent shall issue the number of shares specified in the ATM Purchase Notice to Coeur and Coeur shall pay to ASM Parent an amount equal to the number of shares purchased multiplied by the ATM Average Price for such New Securitiesprior quarter. For purposes of this clause (d), the Holder Pro Rata Share shall be deemed determined as of the first day of the Applicable Quarter. In the event that the ASM Common Shares are listed for trading on the Toronto Stock Exchange (“TSX”) and ASM Parent does not qualify for the eligible inter-listed issuer exemption under section 602.1 of the TSX Company Manual, then the ATM Average Price for any ASM Common Shares issuable to have waived all Coeur above must not be less than the volume weighted average price of the ASM Common Shares on the TSX for the five (5) trading days immediately preceding the date of issuance, less the maximum discount allowed under the policies of the TSX.
(e) In connection with Coeur’s exercise of its rights under this Section 12.5 3 and for so long as the ASM Common Shares are listed for trading on the NYSE American, both Coeur and ASM Parent will comply with respect toNYSE American Company Guide rules including shareholder approval, and only with respect to, the purchase of such New Securitiesif required. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised Coeur exercises its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to3, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is ASM Common Shares will be subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5piggy back registration rights.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Share Purchase Agreement (Avino Silver & Gold Mines LTD)
Preemptive Rights. (a) The LLP Following the Closing, the Purchaser shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under have the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of right to purchase any New Securities at that the Corporation or any Corporation Subsidiary may from time to time propose to issue or sell to any Person.
(b) At least five thirty (530) Business Days prior to any issuance or sale referred to in Section 4.4(a), the Corporation shall notify in writing the Purchaser of such proposed issuance or sale (the “Preemptive Right Notice”). The Preemptive Right Notice shall describe the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities or sale and the price at which such New Securities are to be issued and the other material terms and conditions thereof, including: (i) the number of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued and the percentage of the Corporation's or such Corporation Subsidiary’s outstanding Common Stock, as applicable, on a fully diluted basis, that such issuance would represent; (ii) the proposed issuance date, which shall be at least thirty (30) Business Days from the date of the Preemptive Right Notice; (iii) the proposed purchase price per share and (iv) a summary of the material terms of such New Securities. The Purchaser shall for a period of twenty (20) Business Days following the receipt of a Preemptive Right Notice (the “Exercise Period”) have the right to elect irrevocably to purchase, at the purchase price and on set forth in the other Preemptive Right Notice, all or any portion of such New Securities, by delivering a written notice to the Corporation.
(c) Subject to the Certificate of Designation, the Corporation shall be free to complete the proposed issuance or sale of New Securities described in the Preemptive Right Notice with respect to any New Securities not elected to be purchased pursuant to Section 4.4(b) above in accordance with the terms and conditions specified set forth in the Issuance Notice.
Preemptive Right Notice (b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to except that the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) amount of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (issued or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased sold by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (xCorporation may be reduced) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if so long as such issuance or sale is subject to regulatory approval, such 100-day period shall be extended until the expiration of five closed within sixty (560) Business Days after all such approvals have been received, but in no event later than 120 days from the date expiration of the Issuance Notice. At Exercise Period (subject to the consummation extension of such issuance, sixty (60) Business Day period for a reasonable time not to exceed thirty (30) days to the LLP shall issue extent reasonably necessary to obtain necessary approvals from Governmental Entities). In the New Securities to be purchased by event the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register Corporation has not sold such New Securities in within such time period, the name of each such Holder (and to Corporation shall not thereafter issue or sell any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after without first again offering such 100-day period or on other terms less favorable securities to the issuer, it shall again comply Stockholders in accordance with the procedures set forth in this Section 12.54.4.
(d) The Class B Holders hereby acknowledge and agree that Upon the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (consummation of the “Purchasing Member”), acquire issuance of any New Securities in advance of complying accordance with the requirements of this Section 12.54.4, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP Corporation shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP deliver to the Class B Holders Purchaser certificates (if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.any)
Appears in 1 contract
Samples: Series a 1 Preferred Stock Purchase Agreement (Finjan Holdings, Inc.)
Preemptive Rights. (a) The LLP shall give In the event that the Company proposes to undertake an issuance of any new Units or other equity Securities other than Excluded Securities (any such issuance, “New Securities”), each Class B Qualified Holder that is an Accredited Investor (each, a “accredited investorPreemptive Rights Holder” (as defined and, collectively, the “Preemptive Rights Holders”) shall be entitled, directly or through any Affiliate that is an Accredited Investor, to subscribe for such additional number of New Securities in Rule 501(a) of Regulation D promulgated under proportion to such Qualified Holder’s Percentage with respect to the Securities Act) Class A Units. The Company shall transmit a written notice (an a “Issuance Preemptive Rights Notice”) to all Preemptive Rights Holders not less than forty-five (45) days prior to issuing the New Securities.
(b) The Preemptive Rights Notice shall state: (i) the number of any proposed issuance by the LLP and type of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and (ii) the price and any other material terms and conditions upon which the issuance of New Securities is to be made.
(c) At any time within the ten (10) day period immediately following the receipt of the issuance. If any proposed purchaser will purchase any such New SecuritiesPreemptive Rights Notice (the “Preemptive Rights Period”), each Class B Preemptive Rights Holder shall be entitled may elect, by delivery of written notice to the Company (the “Preemptive Exercise Notice”), to exercise a right (the “Preemptive Right”) to purchase up to its Preemptive Share pro rata share of the New Securities proposed to be issued (the “Preemptive Allocation”) based on a percentage determined by dividing the number of Class A Units held by such Preemptive Rights Holder by the total number of Class A Units held by all Qualified Holders at such time, at the price price, if applicable, and on the other terms and conditions specified set forth in the Issuance Preemptive Rights Notice.
(bd) A Class B The Preemptive Exercise Notice shall state (i) whether the Preemptive Rights Holder may desires to purchase its Preemptive Allocation or a specified number of New Securities less than its Preemptive Allocation and (ii) whether the Preemptive Rights Holder desires to purchase the maximum amount of the New Securities available, including its pro rata share of the New Securities not purchased by other Qualified Holders.
(e) In the event that (i) any Preemptive Rights Holder does not exercise its rights under this Section 12.5 by delivering Preemptive Allocation in full within the Preemptive Rights Period or (ii) any Qualified Holder is ineligible to exercise its Preemptive Right because such Qualified Holder is not an Accredited Investor, the Company shall give written notice of its election to purchase such the number of remaining New Securities subject to all such unexercised portions (the “Excess Preemptive Allocation”) to the LLP Preemptive Rights Holders who exercised their Preemptive Right with respect to their entire Preemptive Allocation (each, a “Subscribing Preemptive Rights Holder” and, collectively, the “Subscribing Preemptive Rights Holders”) within three (3) days. Each Subscribing Preemptive Rights Holder shall be permitted ten (10) Business Days of receipt days from the date such notice is received to exercise the Preemptive Right with respect to all of the Issuance Notice. A delivery Excess Preemptive Allocation; provided that if more than one (1) such Subscribing Preemptive Rights Holder wishes to exercise the Preemptive Right with respect to all of the Excess Preemptive Allocation, each such Subscribing Preemptive Rights Holder shall only have the right to exercise the Preemptive Right with respect to a percentage of such notice Excess Preemptive Allocation equal to the ratio of (which notice shall specify x) the number of Class A Units then held by such Subscribing Preemptive Rights Holder to (or amounty) the total number of Class A Units held by all Subscribing Preemptive Rights Holders wishing to so exercise.
(f) The purchase price for the New Securities to be purchased by a Class B Holder) by a Class B Preemptive Rights Holder (an “Electing Member”) exercising its Preemptive Right shall constitute a binding agreement of such Holder to purchase, at be the price and on the terms and conditions specified set forth in the Issuance Preemptive Rights Notice. Payment of the purchase price shall be made in cash, by bank cashier’s check or certified check or by wire transfer of immediately available funds to the number (or amount) account designated by the Company. The closing with respect to an issuance of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, to a Class B Preemptive Rights Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal pursuant to the percentage obtained by dividing (x) such Electing Member’s exercise of Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice 4.7 shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, held at the price time and on the terms and conditions place specified in the Issuance Notice, the number (or amount) of additional New Securities specified Offer Notice but in such Electing Member’s notice. If, at the termination of such any event within forty-five (545) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all days of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Preemptive Rights Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable is delivered to the LLP than those specified in Preemptive Rights Holders (the “Outside Issuance Notice, Date”); provided that, that if any such issuance is subject to regulation by any Gaming Authority or other regulatory approvalagency, such 100-day period the Outside Issuance Date shall be extended during the period in which the Preemptive Rights Holder diligently pursues the applicable regulatory approvals until the expiration of five (5) Business Days after all such regulatory approvals have been received; provided, but further, that in no event shall the closing occur later than 120 one hundred eighty (180) days following the date on which a Preemptive Rights Notice is delivered unless such time period is extended by the Board based upon information received from a Gaming Authority that a longer period of time is required before such Gaming Authority will make a determination of suitability. If any Preemptive Rights Holder exercising Preemptive Rights fails to obtain the requisite approvals from the date of applicable Gaming Authorities and any other regulatory agency prior to the Outside Issuance Notice. At Date, such Preemptive Rights Holder shall be deemed to have forfeited the consummation of such issuance, the LLP shall issue the right to purchase any New Securities pursuant to be purchased by the Class B such Preemptive Rights Notice.
(g) If all New Securities that Preemptive Rights Holders should they exercise their preemptive rights are entitled to purchase pursuant to this Section 12.5 (and 4.7 are not elected to any third partybe purchased as provided in Section 4.7(e) and register Section 4.7(f) hereof, the Company may, during the forty-five (45) day period following the expiration of the period provided in Section 4.7(a) hereof, offer the remaining unsubscribed portion of such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (Person at a price and on terms no more favorable to any third party) of the purchase price for such New Securitiespurchasers thereof than those offered to the Preemptive Rights Holders. If the LLP proposes to issue any class Company does not complete the sale of the New Securities after within such 100-day period or on other terms less favorable period, the Preemptive Rights provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the issuerPreemptive Rights Holders in accordance herewith.
(h) Notwithstanding anything herein to the contrary, it shall again comply with the procedures Preemptive Rights set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, 4.7 may request that a Class B not be exercised by any Preemptive Rights Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either if (i) issuance of New Securities to such Preemptive Rights Holder would cause the LLP complies with the requirements Company to be in violation of this Section 12.5 with respect thereto any Gaming Law or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Preemptive Rights Holder would have been offered by the LLP under this Section 12.5is an Unsuitable Person.
(ei) The LLP shall Preemptive Rights set forth in this Section 4.7 are not be under any obligation applicable to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance an offering of New Securities pursuant to this Section 12.5 for whatever reason, regardless a Qualified IPO and shall terminate simultaneously with the effectiveness of whether it shall have delivered an Issuance Notice in respect of such proposed issuancea Qualified IPO.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Majestic Holdco, LLC)
Preemptive Rights. SECTION 3.01. Until the occurrence of an IPO, if, following the Closing Date, the Company proposes to issue additional Common Shares to one or more of the Majority Stockholders (a) The LLP the “Participation Shares”), the Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) provide written notice to each Senior Manager of such anticipated issuance no later than fifteen (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (515) Business Days prior to the proposed anticipated issuance date. The Issuance Notice Such notice shall specify set forth the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance, including the proposed purchase price for the new Participation Shares and the anticipated issuance date. If any proposed purchaser will purchase any such New Securities, each Class B Holder Each Senior Manager shall be entitled have the right to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery Pro Rata Portion of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, new Participation Shares at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such HolderCompany’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal delivering an irrevocable written notice to the percentage obtained by dividing Company no later than three (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (53) Business Days before the anticipated issuance date, setting forth the number of receipt such new Participation Shares for which such right is exercised.
SECTION 3.02. In the event Senior Managers do not purchase all such new Participation Shares which they are entitled to purchase in accordance with the procedures set forth in Section 3.01, the Company shall have sixty (60) days after the expiration of the Issuance Notice. A delivery of such notice (which notice shall specify anticipated issuance date to sell to other Persons the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, remaining new Participation Shares at the price and on the terms and conditions specified in the Issuance NoticeCompany’s notice to the Senior Managers pursuant to Section 3.01. If the Company fails to sell such Participation Shares within sixty (60) days of the anticipated issuance date provided in the notice given to the Senior Managers pursuant to Section 3.01, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member Company shall not have exercised thereafter issue or sell any Participation Shares without first offering such Participation Shares to the Senior Managers in the manner provided in Section 3.01.
SECTION 3.03. The election by a Senior Manager not to exercise its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its preemptive rights under this Article III in any one instance shall not affect its right (other than in respect of a reduction in its percentage holdings) as to any future issuances under this Article III. Any sale of Participation Shares by the Company without first giving the Senior Managers the rights described in this Article III shall be void and of no force and effect.
SECTION 3.04. Notwithstanding the foregoing requirements of this Article III, the Company may proceed with an issuance of Participation Shares prior to having complied with the provisions of Article III; provided, that the Company shall:
(a) provide to each Senior Manager (x) prompt notice of such issuance and (y) the notice described in Section 12.5 3.01 in which the actual price per Participation Share shall be set forth;
(b) offer to issue to such Senior Manager such number of Participation Shares of the type issued in the issuance as may be requested by such Senior Manager (not to exceed the number equal to (x) the percent of such new Participation Shares that such Senior Manager would have been entitled to pursuant to Section 3.01, multiplied by (y) the sum of (A) the number of Participation Shares included in such issuance and (B) the maximum aggregate number of Participation Shares issuable pursuant to this Section 3.04 and in connection with the Company’s failure to comply with the preemptive rights of any other stockholders of the Company with respect to, to such issuance) on the same economic terms and only conditions with respect to, to such Additional Purchase Right.Participation Shares as the subscribers in the issuance received; and
(c) keep such offer open for a period of fifteen (15) Business Days, during which period each such Senior Manager may accept such offer by sending a written acceptance to the Company committing to purchase an amount of Participation Shares (not in any event to exceed the number equal to (x) the percent of such new Participation Shares that such Senior Manager would have been entitled to pursuant to Section 3.01, multiplied by (y) the sum of (A) the number of Participation Shares included in such issuance and (B) the aggregate number of Participation Shares issued pursuant to this Section 3.04 and in connection with the Company’s failure to comply with the preemptive rights of any other stockholders of the Company with respect to such issuance). The LLP closing of any such transaction shall have 100 days from occur at such time as the Company specifies, but in any event not prior to the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five fifteen (515) Business Days after all such approvals have been received, but in no event later than 120 days from the date of Company issues the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased notice contemplated by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 clause (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third partyy) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.53.04(a).
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Senior Manager Registration and Preemptive Rights Agreement (Avaya Holdings Corp.)
Preemptive Rights. (ai) The LLP Acquiror hereby grants to the Company (and any Affiliate of the Company to the extent designated by the Company) the right to purchase all or part of its Pro Rata Portion of any new Equity Securities (other than any Excluded Securities) (the “New Securities”) that the Acquiror may propose to issue or sell to any Person on or prior to July 31, 2017 (each a “Subsequent Financing”) on terms not less favorable than the most favorable terms received by any other party in such issuance.
(ii) As soon as practicable prior to the Subsequent Financing (and in any case not later than 15 Business Days prior to such Subsequent Financing; provided that, if the Acquiror has not taken any steps toward a Subsequent Financing (including any approval thereof by its Board of Directors) until fewer than 15 Business Days before such Subsequent Financing, then such notice shall give each Class B Holder be given not later than the earliest possible date such information becomes available, which date shall not be later than the earlier of (A) three Business Days prior to such Subsequent Financing or (B) the date on which such information is provided to any investor or potential investor in the Subsequent Financing), the Acquiror shall deliver to the Company a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask the Company if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Upon the request of the Company, and only upon the request by the Company, for a Subsequent Financing Notice, the Acquiror shall promptly, but no later than one (1) Business Day after such request, deliver a Subsequent Financing Notice to the Company. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing that are available at such time that the Subsequent Financing Notice is delivered (which shall include pricing of the securities, the number and description of such securities (along with the percentage of the Acquiror’s outstanding Equity Securities such issuance would represent) and the proposed issuance date thereof), recognizing that if the Subsequent Financing is an “accredited investor” offering pursuant to an effective registration statement, that there may be minimal details available at the time such Subsequent Financing Notice is delivered as terms will not be set until final pricing negotiations are conducted with the underwriter(s) or placement agent(s); provided that, if any material terms (as defined in Rule 501(aincluding pricing of the securities, the number and description of such securities (along with the percentage of the Acquiror’s outstanding Equity Securities such issuance would represent) of Regulation D promulgated under and the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance date thereof) are not known to the Acquiror at the time of the Subsequent Financing Notice, then the Acquiror shall provide such information (and such information shall be deemed part of a new Subsequent Financing Notice dated as of the receipt date thereof) as soon as such information is known by the LLP of Acquiror (and in any New Securities at least five (5) case not later than two Business Days prior to the proposed issuance date. The Issuance Notice date on which the Company would be required to make a determination as to whether to participate in such offering, it being understood and agreed that if the pricing or other terms will not be known until after such time, a range shall specify the number and class of such New Securities be provided and the price at which Company may condition any participation in such New Securities are offering on pricing and/or number of issued securities meeting parameters established by the Company). If non-cash consideration is to be issued and the other material terms and conditions accepted in respect of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder the Company and the Acquiror shall be entitled jointly agree upon an independent valuation advisor to determine the fair market value of such consideration, and the Company’s rights hereunder shall include the right to purchase any or all of its Pro Rata Portion for cash the lowest price paid by any other party (including fair market value of any non-cash consideration) in such issuance of New Securities.
(iii) If the Company desires to participate in such Subsequent Financing, it must provide written notice to the Acquiror by not later than 5:30 p.m. (New York, New York time) on the fifteenth (15th) Business Day following the date of its receipt of the most recent Subsequent Financing Notice with respect thereto (the “Participation Deadline”), stating the amount of the Company’s participation (up to its Preemptive Share Pro Rata Portion of the New Securities proposed to be issued at a purchase price set forth in the Subsequent Financing Notice), and that the Company has (or will have upon the closing of such purchase) such funds ready, willing, and available for investment on the terms set forth in the Subsequent Financing Notice (such information, the “Participation Notice”). It is understood and agreed that the Company may condition its participation on specified assumptions if the final terms remain variable at the time of the Subsequent Financing Notice (for example, a maximum price and on that it is willing to pay if the other terms and conditions specified price provided in the Issuance NoticeSubsequent Financing Notice is a range).
(biv) A Class B Holder Without limiting the Acquiror’s obligation to provide the Pre-Notice and Subsequent Finance Notice with respect to any issuance as described herein, the Acquiror may exercise its rights under this Section 12.5 by delivering notice of its election to purchase complete any such New Securities offering prior to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, Participation Deadline; provided that, if such issuance is subject completed prior to regulatory approvalthe Participation Deadline, the Acquiror shall provide within one Business Day after completion of such 100-day period issuance a new Subsequent Financing Notice with all of the details of the completed offering, and the Company shall be extended until have the expiration of five right to acquire up to its Pro Rata Portion (5as though it had participated in such issuance) on terms not less favorable than the most favorable terms received by any other party in such issuance by delivering a Participation Notice in respect thereof not later than fifteen Business Days after its receipt of such Subsequent Financing Notice. For the avoidance of doubt, if the Company or any of its Affiliates elects to participate in such issuance, the New Securities it receives in respect thereof shall be entitled to all of the rights in such approvals New Securities from the earliest date of the issuance to any other party in such issuance or offering (such that, for the avoidance of doubt, the New Securities shall for all purposes, including voting rights and the rights to participate in dividends and any other rights with respect to such new Securities, include rights and benefits to the Company and such participating Affiliates equal to at least those rights and benefits that would have accrued had the New Securities been receivedacquired by any of them as of the earliest date of issuance of New Securities to any other party). In the case of a delayed issuance to the Company or any of its Affiliates pursuant to this paragraph, but the Company and the Acquiror shall cooperate to cause such issuance to occur as promptly as practicable following the notice of election to participate is provided by the Company.
(v) If the Company provides a valid Participation Notice to the Acquiror prior to the time specified in no event later than 120 days Section 5.3(f)(iii) or (iv), as applicable, the Acquiror shall include the Company as a participant in the Subsequent Financing, up to the lesser of (i) the amount that the Company has specified in the Participation Notice and (ii) the Company’s Pro Rata Portion, on the same terms and conditions applicable to the Person or Persons through or with whom such Subsequent Financing is proposed to be effected. The Company shall in any case be entitled to receive, and the Acquiror shall provide with each Subsequent Financing Notice, all information received by any other party, investor or potential investor in respect of such issuance and/or offering.
(vi) If there are material changes to any of the information provided in the Subsequent Financing Notice (including any changes or new information regarding the pricing of the securities, the number and description of such securities (along with the percentage of the Acquiror’s outstanding Equity Securities such issuance would represent) or the proposed issuance date thereof) prior to the actual issuance or sale, a new Subsequent Financing Notice shall be provided and the time periods set forth herein shall be applicable from the date of the Issuance new Subsequent Financing Notice. At .
(vii) If the consummation Company and its Affiliates fail to purchase their allotment of such issuance, the LLP shall issue the New Securities in a Subsequent Financing within the time period described herein, the Acquiror shall be free to be purchased by complete the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class proposed issuance or sale of New Securities after such 100-day period or described in the Subsequent Financing Notice with respect to the portion for which the Company and its Affiliates failed to exercise the option set forth in this Section 5.3(f) on other terms no less favorable to the issuerAcquiror than those set forth in the Subsequent Financing Notice; provided that (A) such issuance or sale is closed within 30 Business Days after the expiration of the Participation Deadline and (B) for the avoidance of doubt, it the price at which the New Securities are sold is at least equal to or higher than the purchase price described in the Subsequent Financing Notice. In the event the Acquiror has not sold such New Securities within such time period, the Acquiror shall not thereafter issue or sell any New Securities without first again comply offering such securities to the Company in accordance with the procedures set forth in this Section 12.55.3(f).
(dviii) The Class B Holders hereby acknowledge and agree that Upon the LLP, due issuance of any New Securities to timing constraints, confidentiality considerations, the Company or other reasons, may request that a Class B Holder (the “Purchasing Member”its Affiliates in accordance with this Section 5.3(f), acquire the Acquiror shall deliver to the Company or its applicable Affiliates certificates (if any) evidencing the New Securities, which New Securities shall be issued free and clear of any liens (other than those arising hereunder and those attributable to the actions of the purchasers thereof), and the Acquiror 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 Acquiror or its applicable Affiliates and after payment therefor, duly authorized, validly issued, fully paid and non-assessable. The Company and its applicable Affiliates shall deliver to the Acquiror the purchase price for the New Securities purchased by it by certified or bank check or wire transfer of immediately available funds. Each party to the purchase and sale of New Securities shall take all such other actions as may be reasonably necessary to consummate the purchase and sale including entering into such reasonable additional agreements as may be necessary or appropriate; provided that, in any case, the Company and its Affiliates shall not be required to enter into any agreement or include any terms in such agreements unless such terms were agreed and entered into by each other acquirer of New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5offering.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(fix) Notwithstanding the foregoing, the provisions contained in this Section 12.5 5.3(f) shall not apply to in respect of any Initial Public Offering made pursuant to an effective registration statement filed under issuance of any Excluded Securities by the Securities ActAcquiror.
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Preemptive Rights. (a) The LLP Subject to Sections 4.4(b) and 5.3(d), the Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) Shareholder a notice of Regulation D promulgated under any proposed issuance by the Securities Act) written notice Company of any Shares (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five fifteen (515) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and Shares proposed to be issued, the price at which such New Securities Shares are to be issued issued, the type and amount of consideration offered for the proposed issuance and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder Each Shareholder may exercise its rights under this Section 12.5 elect to purchase any or all of the Shares specified in the Issuance Notice up to such Shareholder’s Pro Rata Portion, by delivering a written notice of its election to purchase such New Securities to the LLP Company (an “Exercise Notice”) within ten (10) Business Days of following receipt of the Issuance Notice. A delivery of such notice (which notice shall specify , setting out the number (or amount) of New Securities Shares to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) such Shareholder. Such Exercise Notice shall constitute exercise by such Shareholder of its rights under this Section 5.3 and a binding agreement of such Holder Shareholder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities Shares specified in such Holder’s noticethe Exercise Notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder any Shareholder shall not have exercised its rights delivered an Exercise Notice to purchase its Preemptive Shares of the Company, such New Securities, the Holder Shareholder shall be deemed to have waived all of its rights under this Section 12.5 5.3 with respect to, and only with respect to, to the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightShares.
(c) The LLP Company shall have 100 ninety (90) calendar days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase Shares at the price and upon terms and conditions that are not materially less favorable to the LLP Company than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the On or before consummation of such issuance, the LLP any Person to whom Shares are issued (unless already bound hereby) shall issue the New Securities agree in writing to be purchased bound by the Class B Holders should they exercise their preemptive rights pursuant to terms of this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New SecuritiesAgreement as a “Shareholder”. If the LLP Company proposes to issue any class of New Securities Shares after such 10090-day period or on other terms less favorable to the issuerperiod, it shall again comply with the procedures set forth in this Section 12.55.3.
(d) The Class B Holders hereby acknowledge and agree that Notwithstanding the LLPforegoing, due no Shareholder shall be entitled to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of purchase any Shares as contemplated by this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either 5.3 in connection with issuances of Shares (i) to employees or directors of the LLP complies with the requirements Company or any of this Section 12.5 with respect thereto or its Subsidiaries pursuant to any equity incentive plans, (ii) issued in connection with any share dividend, share split, reverse share split, reclassification or similar changes in the Purchasing Member offers capital structure of the other Class B Holders the right to acquire from the Purchasing Member that number Company or any of its Subsidiaries, or (iii) in connection with any bona fide, arm’s-length direct or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) indirect merger, acquisition or similar transaction, in each case duly approved pursuant hereto. The LLP Company shall not be under any obligation obligated to consummate any proposed issuance of New SecuritiesShares, nor shall there be liable to any liability on the part of the LLP to the Class B Holders Shareholder if the LLP Company has not consummated any proposed issuance of New Securities Shares pursuant to this Section 12.5 5.3 for whatever reason, regardless of whether it shall have delivered an Issuance Notice or received any Exercise Notices in respect of such proposed issuance.
(e) For the avoidance of doubt, the initial percentage of total share capital of the Company is not guaranteed in the case of an increase in capital of the Company by one Party where the other Party declines to make a capital contribution corresponding to its initial percentage of total [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. share capital of the Company. Anti-dilution protection shall be available to each Party in the event of an increase in capital or issuance of additional Shares of the Company. Each Party will have preemptive rights as set forth in this Section 5.3 to make a capital contribution or subscribe to such additional Shares so as to retain its respective initial percentage of total share capital of the Company and avoid dilution. If either Party fails to exercise its preemptive rights, such Party will not be able to retain its initial percentage of total share capital of the Company and will result in a dilution.
(f) Notwithstanding the foregoing, the provisions contained anything in this Section 12.5 Agreement to the contrary, AV has the right to increase its percentage of total share capital of the Company to up to nineteen percent (19%) at the Initial Share Price by making a capital contribution in cash, up to 1,968,641,975 JPY, which is expected to occur prior to the month immediately previous to the 1st Flight Test at [***] as specified in the Initial Business Plan attached hereto as Exhibit C (such right, “AV’s Share Purchase Right”). No other Shareholder shall not apply have any pre-emptive right to participate in any Initial Public Offering made issuance of Shares to AV pursuant to an effective registration statement filed under AV’s exercise of AV’s Share Purchase Right. AV’s Share Purchase Right shall expire upon the Securities Actcommencement of the 1st Flight Test at [***] as specified in the Initial Business Plan attached hereto as Exhibit C.
(g) Each Shareholder will have the right to participate in future third party offerings.
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Preemptive Rights. Each Lender shall have the right (the “Participation Right”) to purchase such Lender’s Pro Rata Amount of any Unsubscribed Preferred Stock that the Company may from time to time propose to sell and issue after the date hereof, at the price and upon the general terms specified in the Unsubscribed Preferred Stock Issue Notice (as defined below) regarding such Unsubscribed Preferred Stock and otherwise on the following terms:
(a) The LLP Whenever the Company proposes to issue and sell any Unsubscribed Preferred Stock, the Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) Lender written notice (an a “Issuance Unsubscribed Preferred Stock Issue Notice”) describing the type and amount of any Unsubscribed Preferred Stock proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material price and general terms upon which the Company proposes to issue such Unsubscribed Preferred Stock, specifying a proposed closing date and conditions specifying such Lender’s Pro Rata Amount as of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share date of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Unsubscribed Preferred Stock Issue Notice.
(b) A Class B Holder Each Lender may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities Participation Right with respect to the LLP proposed issuance of Unsubscribed Preferred Stock by notice to the Company, given within ten (10) Business Days of receipt of 5 days after the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders Lender shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (received the “Non-Exercising Members”) then Unsubscribed Preferred Stock Issue Notice describing the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightUnsubscribed Preferred Stock.
(c) The LLP If any Lender does not exercise its Participation Right with respect to any proposed Unsubscribed Preferred Stock within the 5 day period, then within 1 business day after the expiration of such 5 day period, the Company shall have 100 days from the date notify each Lender who proposed to purchase not less than such Lender’s Pro Rata Amount of such Unsubscribed Preferred Stock of the Issuance Notice to consummate number of shares of Unsubscribed Preferred Stock which remain available for purchase. Upon receipt of the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those notice specified in the Issuance Noticepreceding sentence, provided that, if each such issuance is subject Lender shall have the additional Participation Right to regulatory approval, purchase such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date Lender’s Pro Rata Amount of the Issuance Notice. At remaining Unsubscribed Preferred Stock (considering the consummation Shares held by all Lenders who purchased less than their Pro Rata Amount of such issuance, the LLP shall issue the New Securities Unsubscribed Preferred Stock not to be purchased issued and outstanding for purposes of computing the Pro Rata Amount), exercisable by written notice delivered to the Class B Holders should Company within 2 business days after receipt of the notice of the availability of the balance of the Unsubscribed Preferred Stock. Such Lenders also may allocate the right to purchase the Unsubscribed Preferred Stock between or among them in any proportion they exercise their preemptive choose as reflected in a written notice to the Company within such 15 day or 2 business day period, as the case may be. Each Lender’s rights pursuant to under this Section 12.5 (5.11 may be assigned to and to any third party) and register among such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5Lender’s Affiliates.
(d) The Class B Holders hereby acknowledge Company may sell the Unsubscribed Preferred Stock not committed for by Lenders at a price and agree that upon general terms no more favorable to the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (purchasers than those specified in the “Purchasing Member”), acquire New Securities in advance of complying Unsubscribed Preferred Stock Issue Notice with the requirements of this Section 12.5, and each Class B Holder consents regard to such issuanceUnsubscribed Preferred Stock, provided that, as promptly as practicable thereafter, either at any time during (iand only during) the LLP complies with 120 days following the requirements expiration of this the last notice period specified in Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.55.11(c).
(e) The LLP shall not be under sale of any obligation Unsubscribed Preferred Stock to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities Lenders pursuant to this Section 12.5 for whatever reason5.11 shall be closed on the same terms, regardless at the same place as, and simultaneously with, the sale of whether it any such Preferred Stock to any other purchasers (provided that the closing shall have delivered an Issuance not take place earlier than the proposed closing date specified in the applicable Unsubscribed Preferred Stock Issue Notice in respect without the consent of such proposed issuanceall participating Lenders).
(f) Notwithstanding anything to the foregoingcontrary contained herein, the provisions contained in this Section 12.5 5.11 shall not apply survive until the later to any Initial Public Offering made occur of (i) the payment of the principal and all accrued and unpaid interest on all Notes issued pursuant to an effective registration statement filed under this Agreement, and (ii) the Securities ActCompany’s receipt of aggregate gross proceeds of at least the sum (a) $7,500,000, plus (b) the aggregate principal amount of the Loans advanced to the Company pursuant to this Agreement, from one or more Funding Transactions completed after the date of this Agreement.
(g) The parties agree that the 5 day period for exercise noted above was set assuming that the Lenders would receive, at least 10 days before receipt of the Unsubscribed Preferred Stock Issue Notice, written notice from the Company that it planned to issue shares of Preferred Stock that would constitute Unsubscribed Preferred Stock if not subscribed for purchase by the holders of the November 2005 Notes. Such notice shall contain the same information as is required in the Unsubscribed Preferred Stock Issue Notice, except that it may specify the total number of shares of Preferred Stock proposed to be issued (as the portion thereof constituting Unsubscribed Preferred Stock may not yet be determined). If the Lenders do not receive such notice at least 10 days before receipt of the Unsubscribed Preferred Stock Issue Notice, then the 5 day period for exercise noted above shall be extended so that the Lenders have no fewer than 15 days to exercise their rights hereunder from the delivery to them of the first written notice of the proposed issuance (which in no event shall be fewer than 5 or more than 15 days after receipt of the Unsubscribed Preferred Stock Issue Notice).
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Preemptive Rights. 6.1 If the Company authorizes, after the date hereof, the issuance or sale of any Equity Securities, other than Exempt Securities, to any Person (aany such Person, the “Proposed Purchaser”), the Company will, at least thirty (30) The LLP shall give days prior to the issuance or sale, notify each Class B Holder Shareholder that is an “accredited investor” (as defined Accredited Shareholder in Rule 501(a) writing of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) price of and any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior material terms relating to the proposed issuance dateor sale (to the extent then known). The Issuance Notice shall specify Each such Shareholder that is an Accredited Shareholder may elect to purchase its Preemptive Rights Pro Rata Portion of the number and class of such New Securities and the price at which such New Securities are interests to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any in such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued issuance or sale at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the same price and on the terms and conditions specified identified in the Issuance Noticenotice. If electing to participate, each such Shareholder shall be required to purchase the number (or amount) same strip of New Securities specified securities, on the same terms and conditions, that the Proposed Purchaser in such Holder’s issuance is purchasing. Each such Shareholder's election to participate in any such additional financing must be made in writing and be delivered to the Company within thirty (30) days after such Shareholder's receipt of the notice from the Company provided under this Section 6.1 and such election shall be binding; provided, that if there is a material change in the terms included in such notice. If, at then the termination of prior election shall not be binding and each such Shareholder will have ten (10) Business Day-perioddays after receipt of notice of the revised terms to reconfirm such Shareholder intention to invest, a Class B Holder which reconfirmation shall be binding if given. The failure to reconfirm shall be deemed an election not have exercised its rights to reconfirm. If after notifying such Shareholder, the Company elects not to proceed with the issuance or sale, then any elections made by such Shareholders pursuant to this Section 6.1 shall be deemed rescinded.
6.2 If any Shareholder does not elect to purchase its Preemptive Shares Rights Pro Rata Portion of the securities to be issued in such issuance or sale (such non-purchased securities, the “Remaining Securities”), then the Company shall notify Purchaser of such New Securities, Remaining Securities in accordance with the Holder shall be deemed to have waived all notice provisions of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities6.1. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to Purchaser may elect to purchase a number or amount of such New the Remaining Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the same price and on the terms and conditions specified identified in the Issuance Notice, notice provided under Section 6.1. Purchaser's election to purchase the number Remaining Securities must be made in writing and be delivered to the Company within fifteen (or amount15) days after such Shareholder's receipt of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, notice from the Electing Member shall be deemed to have waived all of its rights Company provided under this Section 12.5 with respect to6.2.
6.3 Upon the expiration of the offering periods described in Sections 6.1 and 6.2, the Company shall be entitled to sell such securities which the Shareholders have not elected to purchase during the ninety (90) calendar days following such expiration at a price not less than, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon on other terms and conditions that are not less favorable substantially similar to those offered to such Shareholders. Any securities offered or sold by the LLP than those specified in the Issuance Notice, provided thatCompany after such ninety (90) day period (or, if prior to such issuance is subject to regulatory approvalninety (90) day period, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been receivedat a price less than, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable and conditions not substantially similar to those offered to such Shareholders) must be reoffered to such Shareholders pursuant to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements terms of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.56.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Investor Rights Agreement
Preemptive Rights. (a) The LLP shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days If, prior to the proposed issuance date. The Issuance Notice shall specify Preemptive Rights Disqualifying Date, the number and class Corporation proposes to offer any shares of such Capital Stock to any Person or Persons, other than any shares of Capital Stock issued as described in Section 5(h)(iv)(B)(4) or (5), (the “New Securities and Securities”), the price at which such New Securities are Corporation will, prior to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any issuing such New Securities, each Class B Holder shall deliver to the holders of Series A Preferred (the “Qualified Participants”) a written offer (the “Preemptive Rights Offer”) to issue to such Qualified Participants New Securities to maintain their Pro Rata Amounts. The Preemptive Rights Offer will state (i) the amount of New Securities to be entitled to purchase up to its Preemptive Share issued, (ii) the terms of the New Securities Securities, (iii) the purchase price of the New Securities, and (iv) any other material terms of the proposed to be issued at issuance. The Preemptive Rights Offer will remain open and irrevocable for a period of 30 days from the price and on date of its delivery (the other terms and conditions specified in the Issuance Notice“Preemptive Rights Period”).
(b) A Class B Holder Each Qualified Participant may exercise its rights under this Section 12.5 accept the Preemptive Rights Offer by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such Corporation a written notice (which notice shall specify the “Preemptive Rights Notice”) within the Preemptive Rights Period. The Preemptive Rights Notice will state the number (or amountthe “Preemptive Rights Number”) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder Qualifying Participant desires to purchase, at . If the price and on the terms and conditions specified in the Issuance Notice, sum of all Preemptive Rights Numbers exceeds the number (or amount) of New Securities specified in such Holder’s notice. Ifthat the Corporation proposes to issue, at then the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (will be allocated among the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Qualifying Participants that delivered a Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified Notice in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 accordance with respect to, and only with respect to, such Additional Purchase Righttheir Pro Rata Amounts.
(c) The LLP shall have 100 issuance of New Securities to the Qualified Participants will be made on a Business Day, as designated by the Corporation, not less than ten nor more than 30 days from the date after expiration of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon Preemptive Rights Period on terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance NoticePreemptive Rights Offer consistent with this Section 7. At the consummation closing of such issuance, the LLP shall issue issuance of the New Securities to be purchased by such Qualified Participants, the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register Corporation will deliver certificates or other instruments evidencing such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for therefor, and such New SecuritiesSecurities will be issued free and clear of all liens, claims and other encumbrances (other than those attributable to actions by the purchasers thereof). If At such closing, all of the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable parties to the issuer, it shall again comply with transaction will execute such additional documents as are deemed by the procedures set forth Board to be necessary or appropriate in this Section 12.5its sole discretion.
(d) The Class B Holders hereby acknowledge and agree that If the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire number of New Securities included in advance the Preemptive Rights Offer exceeds the sum of complying with all Preemptive Rights Numbers, the requirements Corporation may issue such excess or any portion thereof on the terms and conditions of the Preemptive Rights Offer to any Person within 45 days after expiration of the Preemptive Rights Period (or upon the expiration of any regulatory period, if applicable). If such issuance is not made within such period, the restrictions provided for in this Section 12.5, and each Class B Holder consents to such issuance, 7 will again become effective. Except as otherwise expressly provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of in this Section 12.5 with respect thereto 7, no holder of any shares of Series A Preferred or (ii) the Purchasing Member offers the other Class Series B Holders the Preferred will have any preemptive right to acquire from the Purchasing Member that number (or amount) any shares of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part unissued Capital Stock of the LLP Corporation, now or hereafter authorized, or any treasury shares or securities convertible into such shares or carrying a right to the Class B Holders if the LLP has not consummated any proposed issuance subscribe to or acquire such shares of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuancecapital stock.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Investment Agreement (Dana Corp)
Preemptive Rights. (a) The LLP Company shall give not issue any New Securities to any Person (the “Proposed Recipient”) unless the Company has offered each Class B Holder that is an Investor in accordance with the provisions of this Section 4.04 the right to purchase up to such Investor’s pro rata share of a portion of the New Securities, for a purchase price equal to the price to be paid by the Proposed Recipient and on the same terms and conditions as are offered to the Proposed Recipient. For purpose of this Section 4.04, each Investor’s “accredited investorpro rata share” to purchase a portion of the New Securities shall be equal to the product of (x) the number of New Securities to be issued in the Proposed Issuance, multiplied by (y) a fraction, the numerator of which shall be the number of Company Securities owned by such Investor and the denominator of which shall be the total number of Company Securities then outstanding immediately prior to the issuance of such New Securities.
(b) Not less than twenty (20) Business Days (or other shorter period as defined in Rule 501(aagreed by the Investors) prior to any proposed issuance of Regulation D promulgated under Such New Securities (a “Proposed Issuance”), the Securities Act) Company shall deliver to the Investors a written notice of the Proposed Issuance (an the “Issuance Notice”) of any proposed issuance by setting forth (i) the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number number, type and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New SecuritiesSecurities to be issued, each Class B Holder shall (ii) the consideration to be entitled to purchase up to its Preemptive Share received by the Company in connection with the Proposed Issuance, and (iii) the identity of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance NoticeProposed Recipients.
(bc) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten Within fifteen (1015) Business Days of following receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at Investors shall give written notice to the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all Company of its election to waive or exercise its preemptive rights under this Section 12.5 with respect to, 4.04 and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to if elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify exercise, specifying the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Company Securities to be purchased by the Class B Holders should they exercise their Investors. Failure by any Investor to give such notice within such fifteen (15) Business Day period shall be deemed a waiver by such Investor of its preemptive rights pursuant to under this Section 12.5 (and 4.04 with respect to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5Proposed Issuance.
(d) The Class B Holders hereby acknowledge and agree If both Investors fail to exercise their preemptive rights within the time period described above, the Company shall be free to complete the Proposed Issuance on terms no less favorable to the Company than those set forth in the Issuance Notice; provided, that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) such issuance is consummated within sixty (60) Business Days after the LLP complies with earlier of (x) expiration of the requirements fifteen (15) Business Day period described in Section 4.04(c), and (y) the date of this written notice given by such Investor described in Section 12.5 with respect thereto or 4.04(c), and (ii) the Purchasing Member offers price at which the other Class B Holders new Equity Securities are issued shall be equal to or higher than the right to acquire from purchase price described in the Purchasing Member Issuance Notice. In the event that number (or amount) of the Company has not issued such New Securities that within such Holder would have been offered by sixty (60) Business Day period, the LLP under this Section 12.5.
(e) The LLP Company shall not be under thereafter issue or sell any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP without first again offering such New Securities to the Class B Holders if Investors in the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained manner provided in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act4.04.
Appears in 1 contract
Samples: Shareholder Agreement (Puxin LTD)
Preemptive Rights. After the date hereof and subject to the Certificate of Incorporation:
(a) If the Company proposes to issue any New Issuance Securities, each Eligible Purchaser shall have the right of first refusal to purchase a portion of such New Issuance Securities (a “Ratable Portion”) equal to the total number of New Issuance Securities, multiplied by such Eligible Purchaser’s Percentage Interest.
(b) The LLP Company shall give each Class B Holder that is an “accredited investor” Eligible Purchaser at least fifteen (as defined in Rule 501(a15) of Regulation D promulgated under the Securities Act) days prior written notice of any such proposed issuance of New Issuance Securities (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to setting forth in reasonable detail the proposed issuance date. The Issuance Notice terms and conditions thereof and shall specify offer to each such Eligible Purchaser the number and class opportunity to purchase such Eligible Purchaser’s Ratable Portion of such New Issuance Securities at the same price, on the same terms and at the price at which such same time as the New Issuance Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued by the Company. An Eligible Purchaser may exercise its right of first refusal by delivery of an irrevocable written notice to the Company not more than twenty (20) days after the receipt of any such Issuance Notice. If an Eligible Purchaser fails to agree in writing within such twenty (20)-day period to purchase his, her or its full Ratable Portion of New Issuance Securities (a “Nonpurchasing Stockholder”), then such Nonpurchasing Stockholder shall forfeit the right hereunder to purchase that part of his, her or its full Ratable Portion of such New Issuance Securities that he, she or it did not so agree to purchase.
(c) If an Eligible Purchaser fails to exercise the rights granted to him, her or it in Sections 3(a) and (b) above (the “Preemptive Right”) within the periods specified in such sections, then the Company shall have one hundred eighty (180) days thereafter to issue the New Issuance Securities with respect to which such Eligible Purchaser’s Preemptive Rights were not exercised, at the a price and on upon general terms not materially more favorable to the other terms and conditions purchasers thereof than specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice ; provided that if the issuance of its election to purchase such New Issuance Securities has not occurred during such one hundred eighty (180)-day period as a result of a review by the Securities and Exchange Commission, then the Company shall have an additional ninety (90) days to issue such New Issuance Securities. If the LLP Company has not issued the New Issuance Securities within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions period specified in the Issuance Noticepreceding sentence, then the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder Company shall not have exercised its rights to purchase its Preemptive Shares of thereafter issue any New Issuance Securities without again first offering such New Securities, Issuance Securities to Eligible Purchasers pursuant to this Section 3. The obligations of the Holder Eligible Purchasers exercising their Preemptive Rights shall be deemed to have waived all conditioned upon the consummation of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Issuance Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5Company.
(d) The Class B Holders hereby acknowledge and If the Preemptive Right is exercised by a designee of a Stockholder, then such designee must agree that in writing to be bound by the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements terms of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5Agreement.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Preemptive Rights. (a) The LLP To the extent permitted under Nasdaq rules, the Company hereby grants to Ivory the right until the Second Trigger Date to purchase up to its Pro Rata Portion of any Company Securities that the Company may from time to time propose to issue or sell to any Person; provided, however, that in any case in which Company Securities are to be issued (in whole or in part) as consideration in any merger, consolidation, reorganization, conversion, joint venture, transfer, domestication or any other business combination, or any acquisition (including by merger, consolidation, conversion, transfer, domestication, acquisition of stock or assets or otherwise) of any businesses, assets, operations or securities comprising a business (any such transaction, an “M&A Transaction”), Ivory shall instead be entitled to purchase a number of such Company Securities up to its Percentage Maintenance Share.
(b) Without limiting Ivory’s rights pursuant to Section 3.6, the Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice to Ivory (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least or sale described in Section 4.3(a) within five (5) Business Days prior to following any meeting of the Company Board or any committee of the Company Board (or subcommittee thereof) at which any such issuance or sale is approved or, if the approval of the Company Board or any committee of the Company Board (or subcommittee thereof) is not required in connection with such issuance or sale, no less than 30 days before the date of the proposed issuance dateor sale. The Issuance Notice shall specify the number and class of such New shall, if applicable, be accompanied by a written offer from any prospective purchaser seeking to purchase Company Securities and shall set forth the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any issuance or sale, including:
(i) the number and class of the Company Securities to be issued or sold and the percentage of the outstanding shares of capital stock of the Company such New Securitiesissuance or sale would represent;
(ii) the proposed issuance or sale date, each Class B Holder which shall be entitled at least 30 days from the date of receipt by Ivory of the Issuance Notice; and
(iii) (x) in the case of an issuance for cash (other than a public offering of Company Securities) or offer from a prospective third party for cash, the proposed purchase price in cash per Company Security, and (y) in all other cases (including a public offering of Company Securities), the Company’s calculation of the purchase price based on the Pre-agreed Procedures (such proposed purchase price in clause (x) or (y), the “Proposed Purchase Price”).
(c) For a period of 30 days (such period, as it may be extended pursuant to the proviso of this sentence, the “Election Period”) following the receipt by Ivory of an Issuance Notice, Ivory shall have the right to elect irrevocably to purchase up to its Preemptive Share Pro Rata Portion of the New Company Securities proposed (or, to be issued the extent applicable as set forth in the proviso of Section 4.3(a), a number of Company Securities up to its Percentage Maintenance Share) at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 Proposed Purchase Price by delivering a written notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of Company; provided, however, that following receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, Ivory may agree upon a different Proposed Purchase Price with an RPT Committee in accordance with the Related Party Transactions Policy in which case (i) Ivory shall purchase up to its Pro Rata Portion of the Company Securities (or, to the extent applicable as set forth in the proviso of Section 4.3(a), a number of Company Securities up to its Percentage Maintenance Share) at such other Proposed Purchase Price and (or amountii) of New Securities specified the Election Period shall be tolled for so long as Ivory and an RPT Committee are working in good faith to agree on a Proposed Purchase Price until such Holder’s noticetime as Ivory and such RPT Committee agree on the Proposed Purchase Price. If, at the termination of such ten (10) Business Day-periodthe Election Period, a Class B Holder Ivory shall not have exercised its rights delivered such notice to purchase its Preemptive Shares of such New Securitiesthe Company, the Holder Ivory shall be deemed to have waived all of its rights under this Section 12.5 4.3 with respect to, and only with respect to, to the purchase of such New Securitiesthe Company Securities referred to in the Issuance Notice. If less than 100% The closing of any purchase by Ivory shall be consummated concurrently with the consummation of the Class B Holders issuance or sale described in the Issuance Notice; provided, however, that the closing of any purchase by Ivory may be postponed beyond the closing of the transaction in the Issuance Notice (x) to the extent necessary to obtain any required approval of a Governmental Authority or (y) to the extent stockholder approval is required under the Nasdaq rules, in which case the Company and Ivory shall have exercised their rights to purchase use their respective Preemptive Shares reasonable best efforts to obtain any such approval(s); provided, further, that for all purposes of such New Securities (this Agreement the “Non-Exercising Members”) then Ivory Ownership Percentage and the LLP Ivory Fully Diluted Ownership Percentage shall give each Electing Member which at all times during this period be calculated as if Ivory shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (4.3 in full and to any third party) and register such New Securities as if all remaining shares described in the name Issuance Notice were issued or sold, until such time that (A) such sale to Ivory is consummated, (B) in the case of each a required approval of a Governmental Authority, there is a final, non-appealable court order prohibiting Ivory from acquiring such Holder Company Securities, (C) in the case stockholder approval is required under the Nasdaq rules, such stockholder vote shall have occurred and such sale to any third party)Ivory not be approved, against payment by or (D) Ivory determines not to exercise such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5rights.
(d) The Class B Holders hereby acknowledge Upon the expiration of the Election Period, the Company shall be free to sell such Company Securities referenced in the Issuance Notice that Ivory has not elected irrevocably to purchase on terms and agree conditions no more favorable to the purchasers thereof than those offered to Ivory in the Issuance Notice delivered in accordance with Section 4.3(b); provided, however, that if such sale is not consummated within 30 days after the LLPexpiration of the Election Period, due then any further issuance or sale of such Company Securities shall again be subject to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.54.3.
(e) The LLP provisions of this Section 4.3 shall terminate on the Second Trigger Date. This Section 4.3 shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP apply with respect to the Class B Holders if issuance or sale of Other Company Securities (as defined in the LLP has not consummated any proposed issuance of New Securities pursuant Pre-agreed Procedures) which shall be subject instead to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuancethe Pre-agreed Procedures.
(f) Notwithstanding In all cases where Ivory has the foregoingright to purchase Company Securities up to its Percentage Maintenance Share pursuant to this Agreement (including the Pre-agreed Procedures), following the issuance or sale of the applicable Company Securities that triggers such Percentage Maintenance Share, the provisions contained Ivory Ownership Percentage and the Ivory Fully Diluted Ownership Percentage shall at all times be calculated as if Ivory has exercised such right in this Section 12.5 full and as if any Company Securities not yet issued or sold to the third party shall have been issued or sold, until the earlier of (i) the termination of the period for Ivory to elect to exercise such right if Ivory shall not apply have elected to any Initial Public Offering made pursuant to an effective registration statement filed under exercise such right and (ii) the Securities Actconsummation of Ivory’s exercise of such right, at which time the Ivory Ownership Percentage and the Ivory Fully Diluted Ownership Percentage shall be calculated in accordance with the definitions thereof.
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Preemptive Rights. (a) The LLP In the event that the Royalty Holder receives a written offer from a third party to purchase the Gold Royalty under this Agreement and such offer shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior be acceptable to the proposed issuance date. The Issuance Notice Royalty Holder, the Royalty Holder shall specify the number and class advise WGL of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions proposal including a written summary of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and credit terms offered by such third party. WGL shall then have the right, for a period of 10 Business Days to acquire (or cause any Affiliate to acquire) the Gold Royalty under the same price and credit terms offered by such third party. In the event that WGL declines to exercise its first right of refusal or fails to communicate its intentions to do so to the Royalty Holder within the 10 Business Day notice period, WGL shall be deemed to have granted approval to the Royalty Holder's disposal of its rights or obligations under this Agreement to such third party and the Royalty Holder may assign and transfer such rights and obligations in accordance with the provisions of Clause 5 of this Agreement and the relevant provisions of the Common Terms Agreement to such third party on the other same price and credit terms and conditions specified in within 10 Business Days of WGL declining to exercise its first right of refusal or the Issuance Noticeinitial 10 Business Day notice period expiring, whichever occurs sooner.
(b) A Class B Holder If, in accordance with Clause 4.1(a), WGL advises it wishes to acquire (or cause a Group Member to acquire) the Gold Royalty then, upon payment by WGL or such Group Member (as the case may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10be) Business Days of receipt of the Issuance Notice. A delivery amount due from WGL or such Group Member of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the purchase price and on the terms and conditions specified in the Issuance Noticerelevant offer, the number (or amount) of New Securities specified in such Holder’s notice. IfGold Royalty shall terminate, at the termination of such ten (10) Business Day-period, a Class B Royalty Holder shall not have exercised immediately thereafter be irrevocably and unconditionally released from all its rights obligations to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights WGL under this Section 12.5 with respect toeach Finance Document, and only with (other than in respect to, the purchase of such New Securities. If less than 100% of the Class B Holders Excluded Provisions) WGL's obligations to the Royalty Holder under the Finance Documents shall have exercised their rights to purchase their respective Preemptive Shares cease.
(a) At its election, and upon presentation of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% a quarterly statement of such Electing Member’s Preemptive Share of such New SecuritiesProven and Probable Reserves, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member as provided for in Clause 3.8, WGL shall have the right to elect to purchase acquire the Gold Royalty from the Royalty Holder at a number or amount of such New Securities price equal to the percentage obtained by dividing Purchase Price;
(xb) such Electing Member’s Preemptive Share by (y) As a condition to acquiring the sum Gold Royalty of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Royalty Holder may exercise its Additional Purchase Rights under pursuant to this Section 12.5 by delivering notice of its election to purchase such additional New Securities Clause 4.2, WGL must, inter alia, make a written offer to the LLP within five Royalty Holder in compliance with sub-clause (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.c);
(c) The LLP shall have 100 days from the date Any offer made pursuant to Clause 4.2(b) shall:
(i) be for cash;
(ii) contain details of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance NoticePurchase Price offered, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date including reasonable details thereof including each component of the Issuance Notice. At calculation thereof;
(iii) attach a certificate of the consummation Sponsor representing and warranting the accuracy of such issuance, the LLP shall issue calculation of:
(A) the New Securities to be purchased by Proven and Probable Reserves; and
(B) the Class B Holders should they exercise their preemptive rights proven and probable reserves calculated pursuant to this Section 12.5 paragraph (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third partya)(ii) of the purchase price for definition of "Purchase Price";
(iv) provide details of the date payment will be made pursuant to such New Securities. If the LLP proposes to issue any class of New Securities offer, which must not be more than 60 days after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.offer is made;
(d) The Class B Holders hereby acknowledge and agree that the LLPSubject to Clause 7, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either upon (i) the LLP complies making such offer and payment in accordance with the requirements of this Section 12.5 with respect thereto or Clause 4.2(c)(iv), and (ii) the Purchasing Member offers the other Class B Holders the right Royalty Holder advising it does not intend to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities exercise its rights pursuant to this Section 12.5 for whatever reasonClause 7.1 with respect to such offer, regardless or the expiration of whether it 60 days after such offer is made, the Gold Royalty shall have delivered an Issuance Notice terminate, the Royalty Holder shall immediately thereafter be irrevocably and unconditionally released from all its obligations to WGL under each Finance Document, and (other than in respect of such proposed issuancethe Excluded Provisions) WGL's obligations to the Royalty Holder under each Finance Document shall cease.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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Preemptive Rights. (aIf the Investor’s rights pursuant to Section 5(a) The LLP are terminated pursuant to Section 5(c)(iii), the Investor shall give each Class B Holder that is an “accredited investor” immediately have the preemptive right to purchase its pro rata share of New Securities (as defined in Rule 501(abelow) of Regulation D promulgated under which the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities Company may, from time to time, sell and/or issue at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued (including in an equity financing in which the Threshold Amount is reached), such pro rata share to be determined in the same manner as the Investor’s Ownership Interest (the “Preemptive Share”). In the event the Company proposes to undertake an issuance of New Securities, it shall give the Investor written notice of its intention, describing the type of New Securities, the price and the other material general terms and conditions of upon which the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled Company proposes to purchase up to its Preemptive Share of issue the New Securities proposed to be issued at (the price and on the other terms and conditions specified in the “Issuance Notice.
”). The Investor shall have fifteen (b15) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to business days from the LLP within ten (10) Business Days date of receipt of the Issuance Notice. A delivery Notice (the “Exercise Period”) to agree to purchase all or a portion of the Investor’s Preemptive Share of such New Securities for the price and upon the general terms specified in the Issuance Notice by giving written notice (to the Company, which notice shall specify state the number (or amount) quantity of New Securities to be purchased by a Class B Holder) by a Class B Holder the Investor (an the “Electing MemberPreemptive Notice”). The Company shall have 90 days after the expiration of the Exercise Period (the “Offering Period”) shall constitute to sell the New Securities which are not purchased pursuant to the Preemptive Notice (the “Remaining New Securities”) at a binding agreement of such Holder to purchase, at the price and on upon general terms no more favorable to the terms and conditions purchasers thereof than specified in the Issuance Notice. In the event the Company has not sold the Remaining New Securities within the Offering Period, the number (Company shall not thereafter issue or amount) of sell any New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under without first complying with this Section 12.5 with respect to, and only with respect to, 5(d). The Company agrees that the purchase of such New Securities. If less than 100% of Investor may transfer the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal granted to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights Investor pursuant to this Section 12.5 (and 5(d) to any third party) and register such New Securities in entity or organization within the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New SecuritiesControl Group. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements For purposes of this Section 12.55(d), “New Securities” shall mean any equity securities of the Company whether or not now authorized and each Class B Holder consents to such issuanceany securities convertible, provided that, as promptly as practicable thereafter, either exchangeable or exercisable for any equity security of the Company other than (i) the LLP complies with the requirements of this Section 12.5 with respect thereto Excluded Securities, or (ii) securities issuable upon the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (exercise, conversion or amount) exchange of derivative securities which were originally issued as New Securities that such Holder would have been offered by the LLP under in accordance with this Section 12.55(d).
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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Preemptive Rights. (a) The LLP Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written Preemptive Rightholder notice (an “Issuance Notice”) of any proposed issuance by the LLP Company of any New Company Securities at least five (5) Business Days 10 days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and (i) the price at which such New Company Securities are to be issued issued, (ii) the identity of the prospective subscriber and (iii) the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New SecuritiesSubject to Section 5.05(g) below, each Class B Holder Preemptive Rightholder shall be entitled to purchase up to its Preemptive Share Portion of the New Company Securities proposed to be issued issued, at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise Each Preemptive Rightholder who desires to purchase any or all of its rights under this Section 12.5 by delivering Preemptive Portion of the Company Securities specified in the Issuance Notice shall deliver notice to the Company (each, an “Exercise Notice”) of its election to purchase such New Company Securities to the LLP within ten (10) Business Days of receipt of the Issuance NoticeNotice (the “Preemptive Option Period”). A delivery of such notice (which notice The Exercise Notice shall specify the number (or amount) of New Company Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) such Preemptive Rightholder and shall constitute exercise by such Preemptive Rightholder of its rights under this Section 5.05 and a binding agreement of such Holder it to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Company Securities specified in such Holder’s noticethe Exercise Notice. If, at the termination of such ten (10) Business Day-periodthe Preemptive Option Period, a Class B Holder any Preemptive Rightholder shall not have exercised its rights delivered an Exercise Notice to purchase its the Company, such Preemptive Shares of such New Securities, the Holder Rightholder shall be deemed to have waived all of its rights under this Section 12.5 5.05 with respect to, and only with respect to, to the purchase of such New Company Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) If any Preemptive Rightholder declines or fails to exercise its right to subscribe for its Preemptive Portion of the Company Securities proposed to be issued in full in accordance with Section 5.05(b) and there is at least one Preemptive Rightholder who has fully exercised its right of participation (the “Exercising Rightholder”), the Company shall promptly give notice thereof to each Exercising Rightholder. The LLP Exercising Rightholders shall have 100 a right of over-allotment, and may exercise an additional right to subscribe such unsubscribed Company Securities by notifying the Company in writing within ten (10) Business Days after receipt of notice; provided that if the Exercising Rightholders desire to subscribe in aggregate more than the number of such unsubscribed Company Securities, then such unsubscribed Company Securities will be allocated to the extent necessary among the Exercising Rightholders in accordance with their relative pro rata ownership of Shares on an as-converted basis.
(d) The Company shall have one hundred and twenty (120) days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Company Securities that the Class B Holders Preemptive Rightholders have not elected not to purchase pursuant to this Section 5.05 at the price and upon terms and conditions that are not materially less favorable to the LLP Company than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP Company proposes to issue any class of New such Company Securities after such 100120-day period or on other terms less favorable to the issuerperiod, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.55.05.
(e) The LLP shall not be under any obligation to consummate any proposed At the consummation of the issuance of New such Company Securities, nor the Company shall there be any liability on deliver a copy of its register of members updated to reflect such issuance and issue certificates representing the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Company Securities purchased by each Preemptive Rightholder exercising preemptive rights pursuant to this Section 12.5 5.05, against payment by such Shareholder of the purchase price for whatever reason, regardless of whether it shall have delivered an such Company Securities in accordance with the terms and conditions as specified in the Issuance Notice in respect of such proposed issuanceNotice.
(f) Each Preemptive Rightholder may apportion, at is sole discretion, its Preemptive Portion of the Company Securities proposed to be issued among its Affiliates in any proportion, provided that each of such Affiliate(s) shall meet the prerequisites and qualifications to become a Shareholder of the Company, and execute and deliver a joinder agreement to be bound by this Agreement in the form of Exhibit A attached hereto.
(g) Notwithstanding the foregoing, the provisions contained in no Preemptive Rightholder shall be entitled to purchase Company Securities as contemplated by this Section 12.5 shall not apply 5.05 in connection with issuances of (i) Company Securities (as appropriately adjusted for share subdivision, share dividends, combination, Recapitalizations and similar events) issued (or issuable pursuant to such Company Securities) to the Group Companies’ employees, officers, directors, consultants or any Initial Public Offering made other Persons qualified pursuant to the ESOP of the Company as duly adopted, (ii) Company Securities issued or issuable pursuant to a pro rata share subdivision, share dividend, combination, Recapitalization or other similar transaction of the Company, in each case, as duly approved, (iii) Ordinary Shares issued upon the conversion of Preferred Shares, (iv) Company Securities issued in connection with the exercise of the right under any convertible securities, provided that the issuance of such convertible securities has been duly approved, (iv) Company Securities issued pursuant to an effective registration statement filed under IPO and (v) Company Securities issued in connection with any bona fide, arm’s-length direct or indirect merger, consolidation, asset acquisition or similar transaction where the Securities ActCompany proposes to acquire substantially all of the assets of, or more than fifty percent (50%) of equity interest or voting power in, the target entity, as duly approved.
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Preemptive Rights. (a) The LLP shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under If, prior to the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by Preemptive Rights Disqualifying Date, the LLP of Corporation proposes to issue any New Securities at least five (5) Business Days prior to any Person or Persons, the proposed issuance date. The Issuance Notice shall specify the number Corporation will, as promptly as practicable thereafter and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions in any event within six months of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares issuance of such New Securities, deliver to the Holder shall be deemed holders of Series A Preferred and Series B Preferred a written offer (the “Preemptive Rights Offer”) to have waived all of its rights under this Section 12.5 with respect to, issue additional New Securities having the same terms and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of price as such New Securities (the “Non-Exercising MembersAdditional New Securities”) then to any such holders that are Qualified Participants in order to permit the LLP shall give each Electing Member which shall have exercised its right Qualified Participants to purchase 100% maintain their Pro Rata Amounts (after giving effect to the issuance of such Electing Member’s Preemptive Share of such the New Securities, notice of ). The Preemptive Rights Offer will state (i) the aggregate number or amount of New Securities not being purchased by issued and the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased issued, (ii) the terms of the Additional New Securities, (iii) the purchase price of the Additional New Securities, and (iv) any other material terms of the proposed issuance. The Preemptive Rights Offer will remain open and irrevocable for a period of 30 days from the date of its delivery (the “Preemptive Rights Period”).
(b) Each Qualified Participant may accept the Preemptive Rights Offer by delivering to the Corporation a written notice (the “Preemptive Rights Notice”) within the Preemptive Rights Period, which notice will contain such Electing Member) by an Electing Member shall constitute a binding agreement certifications as the Corporation may require in order to confirm Qualified Participant status. The Preemptive Rights Notice will state the number of New Securities such Member Qualifying Participant desires to purchase, at the price and on the terms and conditions specified in the Issuance Notice, which amount may not exceed the number (or amount) of additional Additional New Securities specified in that such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that Qualified Participant is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed entitled to have waived all of its rights purchase under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right7(a).
(c) The LLP shall have 100 issuance of Additional New Securities to the Qualified Participants will be made on a Business Day, as designated by the Corporation, not less than ten nor more than 30 days from the date after expiration of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon Preemptive Rights Period on terms and conditions that are not less favorable to of the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five Preemptive Rights Offer consistent with this Section 7 (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue “Preemptive Rights Issuance Date”). At the closing of the issuance of the Additional New Securities to be purchased by such Qualified Participants, the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register Corporation will deliver certificates or other instruments evidencing such Additional New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for therefor, and such New Securities. If the LLP proposes to issue any class of Additional New Securities after will be issued free and clear of all liens, claims and other encumbrances (other than those attributable to actions by the purchasers thereof). At such 100-day period or on other terms less favorable closing, all of the parties to the issuer, it shall again comply with transaction will execute such additional documents as are deemed by the procedures set forth Board to be necessary or appropriate in its sole discretion. Except as otherwise expressly provided in this Section 12.5.
(d) The Class 7, no holder of any shares of Series A Preferred or Series B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the Preferred will have any preemptive right to acquire from the Purchasing Member that number (or amount) any shares of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part unissued Capital Stock of the LLP Corporation, now or hereafter authorized, or any treasury shares or securities convertible into such shares or carrying a right to the Class B Holders if the LLP has not consummated any proposed issuance subscribe to or acquire such shares of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuancecapital stock.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Investment Agreement (Dana Corp)
Preemptive Rights. (a) The LLP shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under If the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of Company proposes to issue any New Securities at least five (5) Business Days prior to any Person, the Company shall, before such issuance, deliver to the proposed issuance dateClass F Members, Class E Members, the Class D Members, the Class C Members, the Class B Members and the Original Member (except to the extent such Members are not Accredited Investors) (collectively, and including their Permitted Transferees who are Members, the “Subscribing Members”) a written notice offering to issue to the Subscribing Members such New Securities upon the terms set forth in this Section 9.4 (the “Preemptive Offer Notice”). The Issuance Preemptive Offer Notice shall specify state that the Company proposes to issue New Securities and shall set forth the number and class terms and conditions (including the purchase price) of such New Securities Securities. The offer (the “Preemptive Offer”) shall remain open and irrevocable for a period of ten (10) days (the price at which such New Securities are to be issued and “Preemptive Offer Period”) from the other material terms and conditions date of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Noticedelivery.
(b) A Class B Holder Each Subscribing Member may exercise its rights under this Section 12.5 accept the Preemptive Offer by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such Company a notice (which notice the “Purchase Notice”) at any time during the Preemptive Offer Period. The Purchase Notice shall specify state the number (or amountthe “Preemptive Offer Number”) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder Subscribing Member desires to purchase, at . If the price and on the terms and conditions specified in the Issuance Notice, sum of all Preemptive Offer Numbers exceeds the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder New Securities shall be deemed to have waived all of its rights under this Section 12.5 allocated among the Subscribing Members that delivered a Purchase Notice in accordance with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightPro Rata Amounts.
(c) The LLP issuance of New Securities to the Subscribing Members who delivered a Purchase Notice shall have 100 be made on a Business Day, as designated by the Company, not less than ten (10) and not more than sixty (60) days from the date after expiration of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon Preemptive Offer Period on those terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to Preemptive Offer not inconsistent with this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.59.4.
(d) The Class B Holders hereby acknowledge and agree that If the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that exceeds the sum of all Preemptive Offer Numbers, the Company may issue such Holder would have been offered by excess or any portion thereof on the LLP under terms and conditions set forth in the Preemptive Offer to any Person within ninety (90) days after expiration of the Preemptive Offer Period. If such issuance is not made within such ninety (90)-day period, the restrictions provided for in this Section 12.59.4 shall again become effective.
(e) The LLP shall not be under any obligation to consummate any proposed issuance For purposes of New Securitiesthis Section 9.4, nor shall there be any liability on the part of the LLP each Subscribing Member may aggregate his, her or its Pro Rata Amount among other Subscribing Members in his, her or its Group to the Class B Holders if the LLP has extent that other Subscribing Members in his, her or its Group do not consummated any proposed issuance of New Securities pursuant elect to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuancepurchase their respective Pro Rata Amounts.
(f) Notwithstanding anything to the foregoingcontrary contained herein, the provisions contained Company may, in order to expedite the issuance of the New Securities under this Section 12.5 9.4(f), issue all or a portion of the New Securities to one or more Persons (each, an “Initial Subscribing Investor”), without complying with the provisions of this Section 9.4; provided, that prior to such issuance, either: (i) each Initial Subscribing Investor agrees to offer to sell to each Member who is an Accredited Investor and who is not an Initial Subscribing Investor (each such Member, an “Other Accredited Member”) his or its respective Pro Rata Amount of such New Securities on the same terms and conditions as issued to the Initial Subscribing Investors; or (ii) the Company shall not apply offer to any sell an additional amount of New Securities to each Other Accredited Member only in an amount and manner which provides such Other Accredited Members with rights substantially similar to the rights outlined in Sections 9.4(b) and 9.4(c). The Initial Public Offering made pursuant Subscribing Investors or the Company, as applicable, shall offer to an effective registration statement filed under sell such New Securities to each Other Accredited Member within sixty (60) days after the closing of the purchase of the New Securities Actby the Initial Subscribing Investors.
Appears in 1 contract
Preemptive Rights. At any time following the Fourth Restatement Closing Date until the Maturity Date, if the Company proposes to issue additional Shares to any Person (aother than any Preemptive Rights Excluded Issuance) The LLP (a “New Issuance” and any such Shares or other securities issued thereunder, the “Newly Issued Securities”), the Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) provide written notice to each Fourth Restatement Holder and the Collateral Agent of such anticipated New Issuance no later than seven (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (57) Business Days prior to the proposed anticipated issuance datedate (the “Preemptive Rights Notice”). The Issuance Preemptive Rights Notice shall specify set forth the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any New Issuance, including the proposed purchaser will purchase any price for the Newly Issued Securities, the anticipated issuance date, and the purpose of such New Securities, each Class B Issuance. Each Fourth Restatement Holder shall be entitled have the right to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery Pro Rata Portion of such notice (which notice shall specify the number (or amount) of New Newly Issued Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, Rights Notice by delivering an irrevocable written notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within Company no later than five (5) Business Days of receipt of before the Issuance Notice. A delivery anticipated issuance date, setting forth the number of such notice (Newly Issued Securities for which such right is exercised. Such notice shall specify also include the maximum number (or amount) of Newly Issued Securities such Fourth Restatement Holder would be willing to purchase in the event any other Fourth Restatement Holder elects to purchase less than its Pro Rata Portion of such additional New Securities to be purchased by Newly Issued Securities. If any such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Fourth Restatement Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected elects not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation its full Pro Rata Portion of such issuanceNewly Issued Securities, the LLP Company shall issue allocate any remaining amount among those Fourth Restatement Holder (in accordance with the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name Pro Rata Portion of each such Fourth Restatement Holder (and up to the maximum number specified by Fourth Restatement Holder pursuant to the immediately preceding sentence) who have indicated in their notice to the Company a desire to purchase Newly Issued Securities in excess of their respective Pro Rata Portions. For the purposes of this Section 8.22, “Pro Rata Portion” shall mean, with respect to each Fourth Restatement Holder at any third party)time, against payment a fraction, the numerator of which is the amount of the aggregate unpaid principal amount outstanding under the Notes held by such Fourth Restatement Holder (at such time and to the denominator of which is the aggregate unpaid principal amount outstanding under the Notes held by all Fourth Restatement Holders at such time. The exercise by any third party) Holder of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth rights in this Section 12.5.
(d) The Class B Holders hereby acknowledge 8.22 shall be subject to compliance by the Company with any applicable securities laws and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5stock exchange rules, and each Class B Holder consents a Holder’s rights to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right purchase Newly Issued Securities shall be limited to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP what is permitted under this Section 12.5applicable securities laws.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Securities Purchase Agreement (MedMen Enterprises, Inc.)
Preemptive Rights. (a) The LLP Parties acknowledge that all shareholders of publicly listed Chilean companies, such as the Company, have preemptive rights in accordance with Chilean law. In the event of any change in Chilean law that would adversely affect the preemptive rights of any of the IFC Parties, the Itaú Parties shall give each Class B Holder cause (and the Corp Group Parties shall exercise all such voting rights as are available to it in connection with causing) the Company to, and the Company shall, ensure that is an “accredited investor” the IFC Parties shall have the right to purchase its Pro-Rata Share of New Securities (as defined below) in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) manner set out below, to the extent not in violation of any proposed issuance by Applicable Law.
(b) If the LLP of any New Securities at least five (5) Business Days prior Company proposes to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such issue New Securities, it shall give all shareholders of the Company, including the IFC Parties, written notice of its intention, describing the New Securities, their price, and their general terms of issuance, and specifying the Pro-Rata Share of each Class B Holder such holder of such issuance (the "Issue Notice"). Each shareholder of the Company, including the IFC Parties, shall be entitled have thirty (30) days (or such longer period as provided by Applicable Law) after any such notice is delivered (the "Notification Date") to give the Company written notice that it agrees to purchase up to its Preemptive part or all of any such shareholder's Pro-Rata Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at for the price and on the terms and conditions specified in the Issuance Issue Notice (the "Subscription Notice, "). Each shareholder of the Company may also notify the Company in the Subscription Notice that it is willing to buy a specified number (or amount) of the New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all excess of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “NonPro-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Rata Share of such New issuance ("Additional Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x") such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at for the price and on the terms and conditions specified in the Issuance Issue Notice. For the avoidance of doubt, the number (or amount) of additional Company shall not issue any New Securities specified in such Electing Member’s notice. If, at until after the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightNotification Date.
(c) The LLP shall have 100 days from the date If any shareholder of the Issuance Notice Company has indicated that it is willing to consummate buy Additional Securities, the proposed issuance Company shall give such shareholder written notice of any or all the total number of such New Securities that not taken up by other shareholders of the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of Company ("Unpurchased Securities") within five (5) Business Days after all days (or such approvals have been received, but in no event later than 120 days from the date longer period as provided by Applicable Law) of the Issuance Noticeexpiry of the thirty (30) day period referred to in Section 4.02(b). At Such notice shall specify the consummation particulars of such issuance, the LLP shall issue payment process for the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights IFC Parties pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5Subscription Notice.
(d) The Class B Holders hereby acknowledge and agree that On the LLP, due tenth (10th) Business Day after expiry of the thirty (30) day period referred to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either 4.02(b): (i) the LLP complies with IFC Parties shall subscribe for the requirements number of this Section 12.5 with respect thereto or their Pro-Rata Shares specified in the Subscription Notice; (ii) if the Purchasing Member offers IFC Parties have indicated that they are willing to buy Additional Securities, the other Class B Holders IFC Parties shall also subscribe for the right lower of the number of Additional Securities and the number of Unpurchased Securities; (iii) the IFC Parties shall pay the relevant consideration to acquire from the Purchasing Member that Company or relevant registrar; (iv) the Company shall register in its share registry and in the name of the IFC Parties the number (or amount) of New Securities that such Holder would for which the IFC Parties have been offered by subscribed; and (v) the LLP under this Section 12.5.
(e) The LLP Company shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP issue new certificates to the Class B Holders if IFC Parties representing the LLP has not consummated any proposed issuance number of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall which the IFC Parties have delivered an Issuance Notice in respect of such proposed issuancesubscribed.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Preemptive Rights. The Company shall not issue any Company Securities, except in accordance with the following procedures:
(a) The LLP Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under deliver to the Securities Act) Investor a written notice (an a “Issuance Preemptive Offer Notice”) which shall (i) state the intention of any proposed issuance by the LLP Company to issue Company Securities to one or more Persons, the amount and type of any New Company Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued (the “Issuance Securities”), the purchase price therefor and a summary of the other material terms and conditions of the issuanceproposed issuance and (ii) offer the Investor the option to acquire all or any portion of the Issuance Securities (the “Preemptive Offer”). If any proposed purchaser will purchase any such New SecuritiesThe Investor shall have the right and option, each Class B Holder shall be entitled for a period of fifteen (15) Business Days after delivery of the Preemptive Offer Notice (the “Preemptive Acceptance Period”), to elect to purchase up to its Preemptive Pro Rata Share of all or any portion of the New Issuance Securities proposed to be issued at the purchase price and on the other terms and conditions specified stated in the Preemptive Offer Notice. Such acceptance shall be made by the Investor by delivering a written notice to the Company within the Preemptive Acceptance Period specifying the number of shares of the Issuance Securities the Investor will purchase. The Investor’s “Pro Rata Share” for purposes of this Section 3.3 is the ratio of (a) the number of ADSs and/or ordinary shares of the Company held by the Investor on the date of the Preemptive Offer Notice, to (ii) the total number of issued and outstanding shares in the capital of the Company on the date of the Preemptive Offer Notice.
(b) A Class B Holder may exercise its rights under this If valid acceptance shall not be received pursuant to Section 12.5 by delivering notice of its election 3.3(a) above with respect to purchase such New Securities to the LLP within ten (10) Business Days of receipt all of the Issuance Securities offered pursuant to the Preemptive Offer Notice. A delivery , then the Company may issue all or any portion of such notice (which notice shall specify the number (or amount) of New Issuance Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchaseso offered and not so accepted, at a price not less than the price price, and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP Company than those specified in the Preemptive Offer Notice at any time within sixty (60) days after the expiration of the Preemptive Acceptance Period (the “Issuance Notice, Period”); provided that, if such issuance is subject to regulatory approval, such 100-day sixty (60) days’ period shall be extended until the expiration of five tenth (510th) Business Days Day after all such regulatory approvals have having been received, but in no obtained. In the event later than 120 days from the date that all of the Issuance Notice. At Securities are not so issued by the consummation of such issuanceCompany during the Issuance Period, the LLP right of the Company to issue such unsold Issuance Securities shall issue expire and the New obligations of this Section 3.3 shall be reinstated and such securities shall not be offered unless first reoffered to the Investor in accordance with this Section 3.3.
(c) If the Investor has elected to purchase less than all of the Issuance Securities pursuant to Section 3.3(a), the sale of Issuance Securities to the Investor subject to any Preemptive Offer Notice shall be purchased consummated contemporaneously with the sale of the Issuance Securities that the Investor has not elected to purchase. The delivery of certificates or other instruments evidencing such Issuance Securities shall be made by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register Company upon written request of the Investor or the purchaser thereof on such New Securities in the name of each such Holder (and to any third party), date against payment by such Holder (and to any third party) of the purchase price for such New Issuance Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable .
(d) Notwithstanding anything to the issuercontrary in this Section 3.3, it the pre-emptive right hereunder shall again comply not apply to any sale, offer or issuance of Company Securities: (i) to employees, officers or consultants pursuant to any ESOP or similar share-based incentive plan approved by the Board in accordance with the Memorandum and Articles, (ii) in connection with any exercise of conversion rights by any Person holding the Convertible Note or the Warrant, or any Company Securities issued in compliance with the procedures set forth in this Section 12.5.
3.3, (diii) The Class B Holders hereby acknowledge and agree that any Company Securities issued in connection with any share split, share dividend or any share subdivision or other similar event in which all shareholders of the LLP, due Company are entitled to timing constraints, confidentiality considerationsparticipate on a pro rata basis, or other reasons, may request that (iv) pursuant to a Class B Holder (the “Purchasing Member”), acquire New Securities merger or acquisition transaction involving any Group Company duly approved in advance of complying accordance with the requirements of this Section 12.5, Memorandum and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5Articles.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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Preemptive Rights. (a) The LLP shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under If the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of Corporation proposes to issue any New Securities at least five (5) Business Days prior to any Person, the Corporation shall, before such issuance, deliver to the proposed issuance dateStockholders (other than those Stockholders that are not Accredited Investors (collectively, the “Subscribing Stockholders”)) a written notice offering to issue to the Subscribing Stockholders such New Securities upon the terms set forth in this Section 3.4 (the “Preemptive Offer Notice”). The Issuance Preemptive Offer Notice shall specify state that the Corporation proposes to issue New Securities and shall set forth the number and class the terms and conditions (including the purchase price) of such New Securities Securities. The offer (the “Preemptive Offer”) shall remain open and irrevocable for a period of ten (10) calendar days (the price at which such New Securities are to be issued and “Preemptive Offer Period”) from the other material terms and conditions date of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Noticedelivery.
(b) A Class B Holder Each Subscribing Stockholder may exercise its rights under this Section 12.5 accept the Preemptive Offer by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such Corporation a notice (which notice the “Purchase Notice”) at any time during the Preemptive Offer Period. The Purchase Notice shall specify state the number (or amountthe “Preemptive Offer Number”) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder Subscribing Stockholder desires to purchase, at . If the price and on the terms and conditions specified in the Issuance Notice, sum of all Preemptive Offer Numbers exceeds the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, then the Holder New Securities shall be deemed to have waived all of its rights under this Section 12.5 allocated among the Subscribing Stockholders that delivered a Purchase Notice in accordance with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities Pro Rata Amount (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of based on the aggregate number or amount of New Securities not being purchased by Common Stock Equivalents outstanding at the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount time of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of Offer and held by all such Electing Members (the “Additional Purchase Right”Subscribing Stockholders). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP issuance of New Securities to the Subscribing Stockholders who delivered a Purchase Notice shall have 100 be made on a Business Day, as designated by the Corporation, not less than ten (10) and not more than sixty (60) calendar days from the date after expiration of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon Preemptive Offer Period on those terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to Preemptive Offer not inconsistent with this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.53.4.
(d) The Class B Holders hereby acknowledge and agree that If the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that exceeds the sum of all Preemptive Offer Numbers, the Corporation may issue such Holder would have been offered by excess or any portion thereof on the LLP under terms and conditions set forth in the Preemptive Offer to any Person within ninety (90) calendar days after expiration of the Preemptive Offer Period. If such issuance is not made within such 90-day period, the restrictions provided for in this Section 12.53.4 shall again become effective.
(e) The LLP shall not be under any obligation to consummate any proposed issuance For purposes of New Securitiesthis Section 3.4, nor shall there be any liability on the part of the LLP each Subscribing Stockholder may aggregate his, her or its Pro Rata Amount among other Subscribing Stockholders in his, her or its Group to the Class B Holders if the LLP has extent that other Subscribing Stockholders in his, her or its Group do not consummated any proposed issuance of New Securities pursuant elect to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuancepurchase their respective Pro Rata Amounts.
(f) Notwithstanding anything to the foregoingcontrary contained herein, the provisions contained Corporation may, in order to expedite the issuance of the New Securities under this Section 12.5 3.4, issue all or a portion of the New Securities to one or more Persons (each, an “Initial Subscribing Investor”), without complying with the provisions of this Section 3.4; provided, that prior to such issuance, either (i) each Initial Subscribing Investor agrees to offer to sell to each Stockholder who is an Accredited Investor and who is not an Initial Subscribing Investor (each such Stockholder, an “Other Accredited Stockholder”) his or its respective Pro Rata Amount of such New Securities on the same terms and conditions as issued to the Initial Subscribing Investors or (ii) if the Initial Subscribing Investor was a Stockholder prior to the issuance of New Securities in accordance with this Section 3.4, the Corporation shall not apply offer to any sell an additional amount of New Securities to each Other Accredited Stockholder only in an amount and manner which provides such Other Accredited Stockholders with rights substantially similar to the rights outlined in Sections 3.4(b), 3.4(c) and 3.4(e) hereof. The Initial Public Offering made pursuant Subscribing Investors or the Corporation, as applicable, shall offer to an effective registration statement filed under sell such New Securities to each Other Accredited Stockholder within sixty (60) calendar days after the closing of the purchase of the New Securities Actby the Initial Subscribing Investors.
Appears in 1 contract
Preemptive Rights. The Company hereby grants to each Member the right to purchase such Member’s Preemptive Right Share of all (aor any part) The LLP shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five that the Company may from time to time issue after the date of this Agreement (5) Business Days prior the “Preemptive Right”). In the event the Company proposes to the proposed undertake an issuance date. The Issuance Notice shall specify the number and class of such New Securities (in a single transaction or a series of related transactions), the Company shall give to each Member written notice of its intention to issue New Securities (the “Preemptive Right Participation Notice”), describing the amount and type of New Securities, the cash purchase price and the price at general terms upon which such New Securities are it proposes to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any issue such New Securities, each Class B Holder . Each Member shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within have ten (10) Business Days from the date of receipt of any such Preemptive Right Participation Notice (the Issuance Notice. A delivery “Preemptive Right Notice Period”) to agree in writing to purchase for cash up to such Member’s Preemptive Right Share of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at for the price and on upon the terms and conditions specified in the Issuance Notice, Preemptive Right Participation Notice by giving written notice to the number (or amount) Company and stating therein the quantity of New Securities specified to be purchased (not to exceed such Member’s Preemptive Right Share). If any Member fails to so respond in writing within the Preemptive Right Notice Period, then such Holder’s notice. If, at Member shall forfeit the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights right hereunder to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase Right Share of such New Securities. If less than 100% Subject to obtaining the requisite authorization, approval or consent of any Governmental Body, the closing of any purchase by any Member pursuant to this Section 7.1 shall be consummated concurrently with the consummation of the Class B Holders issuance or sale described in the Preemptive Right Participation Notice. The Company shall have exercised their rights be free to purchase their respective Preemptive Shares complete the proposed issuance or sale of such New Securities described in the Preemptive Right Participation Notice with respect to any New Securities not elected to be purchased pursuant to this Section 7.1 in accordance with the terms and conditions set forth in the Preemptive Right Participation Notice (except that the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased to be issued or sold by the Non-Exercising Members. Each such Electing Company may be reduced upon approval by the Board, which shall require the approval of each Investor Director so long as the Investor Member shall have the right to elect to purchase holds a number or amount Common Percentage Interest of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”at least 30.0%). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.ARTICLE VIII
Appears in 1 contract
Samples: Limited Liability Company Agreement (Firstenergy Corp)
Preemptive Rights. (a) The LLP At least ten (10) days prior to consummating any sale of Securities (a "Sale"), the Company shall give each Class B Holder that is an “accredited investor” notify Ciba in writing of such pending Sale (as defined in Rule 501(a) the "Sale Notice"). Each Sale Notice shall describe all of Regulation D promulgated under the material terms of the Sale and of the Securities Actto be sold therein (including, without limitation, the number of such Securities to be sold and the sale price). Ciba shall have the right, exercisable for a period of ninety (90) days following its receipt of each Sale Notice, to purchase from the Company, at the purchase price set forth in such Sale Notice, up to a number of newly issued Securities of the type to be sold in such Sale (which Securities shall be in addition to those sold by the Company in such Sale) equal to the product of the Ciba Percentage multiplied by the total number of such Securities proposed to be sold in such Sale. Such right shall be exercised by delivering to the Company, within the ninety (90) day period noted above, a written notice of exercise (an “Issuance "Exercise Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice "), which shall specify the number and class of such New Securities Ciba wishes to purchase and the price at date on which Ciba wishes to consummate such New Securities are to purchase (the "Closing Date"), which shall be issued and no later than ten (10) business days after the other material terms and conditions later of (i) the date of the issuance. If any proposed purchaser will purchase any such New Securitiesconsummation of the, each Class B Holder shall be entitled to purchase up to its Preemptive Share Sale and (ii) the date of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Exercise Notice.
(b) A Class B Holder may exercise its rights under The preemptive right granted in this Section 12.5 by delivering notice of its election to purchase such New Securities to 4.4 shall terminate upon the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchaseconsummation of, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only valid with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightInitial Public Offering.
(c) The LLP shall have 100 days from the date closing of the Issuance Notice to consummate the proposed issuance a purchase of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights Ciba pursuant to this Section 12.5 (and to any third party) and register such New Securities in 4.4 shall take place at the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) principal office of the purchase price for Company on the Closing Date (or at such New Securitiesother time and place. If as the LLP proposes to Company and Ciba shall agree upon). At such closing the Company shall issue any class of New and deliver the applicable Securities after such 100-day period or on other terms less favorable and Ciba shall deliver a certified check to the issuerCompany for the applicable purchase price. The parties shall also execute and deliver customary closing documents, it shall again comply with the procedures set forth in this Section 12.5including, without limitation, investment representations.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance rights of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP Ciba under this Section 12.5.
(e) The LLP shall 4.4 may not be under assigned to, or exercised by, any obligation other person or entity, other than a successor to consummate any proposed issuance of New SecuritiesCiba's Pharmaceutical Division, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reasonwhether by merger, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuanceconsolidation, stock sale, asset sale or otherwise.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Stockholders' Agreement (Iomed Inc)
Preemptive Rights. The Company hereby grants to each Member the right to purchase such Member’s Preemptive Right Share of all (aor any part) The LLP shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five that the Company may from time to time issue after the date of this Agreement (5) the “Preemptive Right”). In the event the Company proposes to undertake an issuance of New Securities (in a single transaction or a series of related transactions), the Company shall give to each Member written notice of its intention to issue New Securities (the “Preemptive Right Participation Notice”), describing the amount and type of New Securities, the cash purchase price and the general terms upon which it proposes to issue such New Securities. Each Member shall have 10 Business Days prior from the date of receipt of any such Preemptive Right Participation Notice (the “Preemptive Right Notice Period”) to the proposed issuance date. The Issuance Notice shall specify the number and class agree in writing to purchase for cash up to such Member’s Preemptive Right Share of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at for the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on upon the terms and conditions specified in the Issuance Notice, Preemptive Right Participation Notice by giving written notice to the number (or amount) Company and stating therein the quantity of New Securities specified to be purchased (not to exceed such Member’s Preemptive Right Share). If any Member fails to so respond in writing within the Preemptive Right Notice Period, then such Holder’s notice. If, at Member shall forfeit the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights right hereunder to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase Right Share of such New Securities. If less than 100% Subject to obtaining the requisite authorization, approval or consent of any Governmental Body, the closing of any purchase by any Member pursuant to this Section 7.1 shall be consummated concurrently with the consummation of the Class B Holders issuance or sale described in the Preemptive Right Participation Notice. The Company shall have exercised their rights be free to purchase their respective Preemptive Shares complete the proposed issuance or sale of such New Securities described in the Preemptive Right Participation Notice with respect to any New Securities not elected to be purchased pursuant to this Section 7.1 in accordance with the terms and conditions set forth in the Preemptive Right Participation Notice (except that the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased to be issued or sold by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”Company may be reduced). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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Preemptive Rights. Each Lender shall have the right (the “Participation Right”) to purchase such Lender’s Pro Rata Amount of any Preferred Stock that the Company may from time to time propose to sell and issue after the date hereof, at the price and upon the general terms specified in the Preferred Stock Issue Notice (as defined below) regarding such Preferred Stock and otherwise on the following terms:
(a) The LLP Whenever the Company proposes to issue and sell any Preferred Stock, the Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) Lender written notice (an a “Issuance Preferred Stock Issue Notice”) describing the type and amount of any Preferred Stock proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material price and general terms upon which the Company proposes to issue such Preferred Stock, specifying a proposed closing date and conditions specifying such Lender’s Pro Rata Amount as of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share date of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Preferred Stock Issue Notice.
(b) A Class B Holder Each Lender may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities Participation Right with respect to the LLP proposed issuance of Preferred Stock by notice to the Company, given within ten (10) Business Days of receipt of 15 days after the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders Lender shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (received the “Non-Exercising Members”) then Preferred Stock Issue Notice describing the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightPreferred Stock.
(c) The LLP If any Lender does not exercise its Participation Right with respect to any proposed Preferred Stock within the 15 day period, then within 1 business day after the expiration of such 15 day period, the Company shall have 100 days from the date notify each Lender who proposed to purchase not less than such Lender’s Pro Rata Amount of such Preferred Stock of the Issuance Notice to consummate number of shares of Preferred Stock which remain available for purchase. Upon receipt of the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those notice specified in the Issuance Noticepreceding sentence, provided that, if each such issuance is subject Lender shall have the additional Participation Right to regulatory approval, purchase such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date Lender’s Pro Rata Amount of the Issuance Notice. At remaining Preferred Stock (considering the consummation Shares held by all Lenders who purchased less than their Pro Rata Amount of such issuance, the LLP shall issue the New Securities Preferred Stock not to be purchased issued and outstanding for purposes of computing the Pro Rata Amount), exercisable by written notice delivered to the Class B Holders should Company within 2 business days after receipt of the notice of the availability of the balance of the Preferred Stock. Such Lenders also may allocate the right to purchase the Preferred Stock between or among them in any proportion they exercise their preemptive choose as reflected in a written notice to the Company within such 15 day or 2 business day period, as the case may be. Each Lender’s rights pursuant to under this Section 12.5 (5.11 may be assigned to and to any third party) and register among such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5Lender’s Affiliates.
(d) The Class B Holders hereby acknowledge Company may sell the Preferred Stock not committed for by Lenders at a price and agree that upon general terms no more favorable to the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (purchasers than those specified in the “Purchasing Member”), acquire New Securities in advance of complying Preferred Stock Issue Notice with the requirements of this Section 12.5, and each Class B Holder consents regard to such issuancePreferred Stock, provided that, as promptly as practicable thereafter, either at any time during (iand only during) the LLP complies with 120 days following the requirements expiration of this the last notice period specified in Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.55.11(c).
(e) The LLP shall not be under sale of any obligation Preferred Stock to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities Lenders pursuant to this Section 12.5 for whatever reason5.11 shall be closed on the same terms, regardless at the same place as, and simultaneously with, the sale of whether it any such Preferred Stock to any other purchasers (provided that the closing shall have delivered an Issuance not take place earlier than the proposed closing date specified in the applicable Preferred Stock Issue Notice in respect without the consent of such proposed issuanceall participating Lenders).
(f) Notwithstanding anything to the foregoingcontrary contained herein, the provisions contained in this Section 12.5 5.11 shall not apply survive until the later to any Initial Public Offering made occur of (i) the payment of the principal and all accrued and unpaid interest on all Notes issued pursuant to an effective registration statement filed under this Agreement, and (ii) the Securities ActCompany’s receipt of aggregate gross proceeds of at least $7,500,000 from one or more Funding Transactions completed after the date of this Agreement.
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Preemptive Rights. (a) The LLP Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) Initial Member written notice (an “Issuance Notice”) of any proposed issuance by the LLP Company of any New Equity Securities at least five (5) 15 Business Days prior to the earlier of (i) the Company’s entry into a definitive agreement or (ii) the proposed issuance date, in each case, with respect to such proposed issuance. The Issuance Notice shall specify the number and class of such New Securities and (i) the price at which such New Equity Securities are to be issued issued, (ii) the amount and the kind of Equity Securities proposed to be issued, and (iii) any other material terms and conditions of the issuanceissuance (including the terms of the Equity Securities proposed to be issued). If any proposed purchaser will purchase any such New Securities, each Class B Holder Each Initial Member shall be entitled to purchase up to its Preemptive Share Membership Percentage of the New Equity Securities proposed to be issued issued, at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise If an Initial Member desires to purchase any or all of the Equity Securities specified in the Issuance Notice (up to its rights under this Section 12.5 by delivering Membership Percentage), it shall deliver a written notice to the Company (each a “Preemptive Rights Exercise Notice”) of its election to purchase such New Equity Securities to the LLP within ten (10) Business Days of after receipt of the Issuance Notice. A delivery of such notice (which notice The Preemptive Rights Exercise Notice shall specify the number (or cash amount) of New Equity Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) such Initial Member and shall constitute a binding agreement of exercise by such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all Initial Member of its rights under this Section 12.5 with respect to, 2.6 and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Initial Member to purchase, at the price and on the terms and conditions specified in the Issuance NoticeNotice and in accordance with this Section 2.6, the number (or amount) of additional New Equity Securities specified in the Preemptive Rights Exercise Notice. Any such Electing Member’s noticepurchase shall be consummated as promptly as reasonably practicable. If, at the termination of such five (5) ten Business Day-Day period, a Class B Holder that is an Electing Initial Member shall not have exercised its Additional Purchase Rightdelivered a Preemptive Rights Exercise Notice to the Company, the Electing such Initial Member shall be deemed to have waived all of its rights under this Section 12.5 2.6 with respect toto the purchase of such Equity Securities. Promptly following the termination of such ten Business Day period, and only with respect tothe Company shall deliver to each of the Initial Members a copy of any Preemptive Rights Exercise Notice it has received or notify each of the Initial Members that no Preemptive Rights Exercise Notices have been received (each, such Additional Purchase Righta “Second Notice”).
(c) If an Initial Member fails to exercise its preemptive rights under this Section 2.6 or elects to exercise such rights with respect to less than its Membership Percentage of the issuance, and the other Initial Member has exercised its rights under this Section 2.6 with respect to its entire Membership Percentage of the issuance, such other Initial Member shall be entitled to purchase from the Company any or all of the remaining portion of the issuance. If such other Initial Member desires to purchase such remaining portion, it shall deliver a written notice to the Company of its election to purchase such remaining portion within five Business Days following receipt of the Second Notice from the Company.
(d) The LLP Company shall have 100 up to 90 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Equity Securities that the Class B Holders Initial Members have not elected not to purchase at a price equal to or greater than the price specified in the Issuance Notice and otherwise upon terms and conditions that are not less favorable to the LLP Company than those specified in the Issuance Notice; provided, provided that, that if any Governmental Approvals are required in connection with such issuance is subject to regulatory approvalissuance, such 10090-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from following the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (on which all Governmental Approvals are obtained and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securitiesapplicable waiting periods under applicable Law have expired or been terminated. If the LLP Company proposes to issue any class of New such Equity Securities after such 10090-day period (or on other terms less favorable to longer, as permitted by the issuerpreceding sentence) period, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.52.6.
(e) The LLP shall not be under any obligation to consummate any proposed At the consummation of the issuance of New such Equity Securities, nor shall there be any liability on the part secretary of the LLP to Company (the Class B Holders if “Secretary”) shall register into the LLP has not consummated any proposed issuance books and records of New the Company the Equity Securities purchased by each Initial Member exercising preemptive rights pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice 2.6 in respect the name of such proposed issuanceInitial Member, against payment by such Initial Member of the purchase price for such Equity Securities on the terms and subject to the conditions specified in the Issuance Notice.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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Preemptive Rights. The Company shall not issue any Company Securities, except in accordance with the following procedures:
(a) The LLP Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under deliver to the Securities Act) Investor a written notice (an a “Issuance Preemptive Offer Notice”) which shall (i) state the intention of any proposed issuance by the LLP Company to issue Company Securities to one or more Persons, the amount and type of any New Company Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued (the “Issuance Securities”), the purchase price therefor and a summary of the other material terms and conditions of the issuanceproposed issuance and (ii) offer the Investor the option to acquire all or any portion of the Issuance Securities (the “Preemptive Offer”). If any proposed purchaser will purchase any such New SecuritiesThe Investor shall have the right and option, each Class B Holder shall be entitled for a period of fifteen (15) Business Days after delivery of the Preemptive Offer Notice (the “Preemptive Acceptance Period”), to elect to purchase up to its Preemptive Pro Rata Share of all or any portion of the New Issuance Securities proposed to be issued at the purchase price and on the other terms and conditions specified stated in the Preemptive Offer Notice. Such acceptance shall be made by the Investor by delivering a written notice to the Company within the Preemptive Acceptance Period specifying the number of shares of the Issuance Securities the Investor will purchase. The Investor’s “Pro Rata Share” for purposes of this Section 3.3 is the ratio of (a) the number of ADSs and/or ordinary shares of the Company held by the Investor on the date of the Preemptive Offer Notice, to (ii) the total number of issued and outstanding shares in the capital of the Company on the date of the Preemptive Offer Notice.
(b) A Class B Holder may exercise its rights under this If valid acceptance shall not be received pursuant to Section 12.5 by delivering notice of its election 3.3(a) above with respect to purchase such New Securities to the LLP within ten (10) Business Days of receipt all of the Issuance Securities offered pursuant to the Preemptive Offer Notice. A delivery , then the Company may issue all or any portion of such notice (which notice shall specify the number (or amount) of New Issuance Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchaseso offered and not so accepted, at a price not less than the price price, and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP Company than those specified in the Preemptive Offer Notice at any time within sixty (60) days after the expiration of the Preemptive Acceptance Period (the “Issuance Notice, Period”); provided that, if such issuance is subject to regulatory approval, such 100-day sixty (60) days’ period shall be extended until the expiration of five tenth (510th) Business Days Day after all such regulatory approvals have having been received, but in no obtained. In the event later than 120 days from the date that all of the Issuance Notice. At Securities are not so issued by the consummation of such issuanceCompany during the Issuance Period, the LLP right of the Company to issue such unsold Issuance Securities shall issue expire and the New obligations of this Section 3.3 shall be reinstated and such securities shall not be offered unless first reoffered to the Investor in accordance with this Section 3.3.
(c) If the Investor has elected to purchase less than all of the Issuance Securities pursuant to Section 3.3(a), the sale of Issuance Securities to the Investor subject to any Preemptive Offer Notice shall be purchased consummated contemporaneously with the sale of the Issuance Securities that the Investor has not elected to purchase. The delivery of certificates or other instruments evidencing such Issuance Securities shall be made by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register Company upon written request of the Investor or the purchaser thereof on such New Securities in the name of each such Holder (and to any third party), date against payment by such Holder (and to any third party) of the purchase price for such New Issuance Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable .
(d) Notwithstanding anything to the issuercontrary in this Section 3.3, it the preemptive right hereunder shall again comply not apply to any sale, offer or issuance of Company Securities: (i) to employees, officers or consultants pursuant to any ESOP or similar share-based incentive plan approved by the Board in accordance with the Memorandum and Articles, (ii) in connection with any exercise of conversion rights by any Person holding the Convertible Note or the Warrant, or any Company Securities issued in compliance with the procedures set forth in this Section 12.5.
3.3, (diii) The Class B Holders hereby acknowledge and agree that any Company Securities issued in connection with any share split, share dividend or any share subdivision or other similar event in which all shareholders of the LLP, due Company are entitled to timing constraints, confidentiality considerationsparticipate on a pro rata basis, or other reasons, may request that (iv) pursuant to a Class B Holder (the “Purchasing Member”), acquire New Securities merger or acquisition transaction involving any Group Company duly approved in advance of complying accordance with the requirements of this Section 12.5, Memorandum and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5Articles.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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Preemptive Rights. (a) The LLP Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) Wind Acquisition and CVPS written notice (an “Issuance Notice”) of any proposed issuance by the LLP Company of any New Company Equity Securities at least five (5) Business Days 15 days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Company Equity Securities and and, subject to the determination of the price at which such New Company Equity Securities are proposed to be issued and in accordance with Section 4.04(g), the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New SecuritiesSubject to Section 4.04(f), each Class B Holder Wind Acquisition and CVPS shall be entitled to purchase up to its Preemptive Share such Stockholder’s pro rata share of the New Company Equity Securities proposed to be issued at such that upon consummation of such proposed issuance such Stockholder shall own the price and same Ownership Percentage as it did immediately prior to such issuance, on the other terms and conditions specified in the Issuance Notice, it being acknowledged that the Management Stockholders are also entitled to preemptive rights pursuant to the Management Stockholders Agreement.
(b) A Class B Holder Each of Wind Acquisition and CVPS may exercise its rights under this Section 12.5 4.04 by delivering written notice of its election to purchase such New Company Equity Securities to the LLP Company and to each other within ten (10) Business Days 15 days after the later of receipt of the Issuance NoticeNotice and the determination of the price at which such Company Equity Securities are proposed to be issued in accordance with Section 4.04(g). A delivery of such notice (which notice shall specify the number (or amount) of New Company Equity Securities requested to be purchased by a Class B Holderthe Stockholder submitting such notice) by a Class B Holder (an “Electing Member”) such Stockholder shall constitute a binding agreement of such Holder Stockholder to purchase, at the price as determined in accordance with Section 4.04(g) and otherwise on the terms and conditions specified in the Issuance Notice, the number of shares (or amount) of New Company Equity Securities specified in such HolderStockholder’s notice. If, at the termination of such ten (10) Business Day15 day-period, a Class B Holder any of Wind Acquisition or CVPS shall not have exercised its rights to purchase its Preemptive Shares any of such New Stockholder’s pro rata share of such Company Equity Securities, the Holder such Stockholder shall be deemed to have waived all of its rights under this Section 12.5 4.04 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Company Equity Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) If any of Wind Acquisition, CVPS or any Management Stockholder fails to exercise its preemptive rights under this Section 4.04, or with respect to the Management Stockholders, under the Management Stockholders’ Agreement, or elects to exercise such rights with respect to less than such Stockholder’s pro rata share (the difference between such Stockholder’s or Management Stockholder’s pro rata share and the number of shares for which such Stockholder or Management Stockholder exercised its preemptive rights under this Section 4.04, or with respect to a Management Stockholder, under the Management Stockholders’ Agreement, the “Excess Shares”), any participating Stockholder electing to exercise its rights with respect to its full pro rata share (a “Fully Participating Stockholder”) shall be entitled to purchase from the Company an additional number of Company Equity Securities equal to the product of (i) the Excess Shares and (ii) a fraction, the numerator of which is the Ownership Percentage of such Fully Participating Stockholder, and the denominator of which is equal to the sum of (x) the Ownership Percentage of all Fully Participating Stockholders and (y) the Ownership Percentage of all Management Stockholders that elected to exercise their preemptive rights with respect to their full pro rata share pursuant to Section 4.04(b) of the Management Stockholders’ Agreement.
(d) The LLP Company shall have 100 90 days from after the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Company Equity Securities that the Class B Holders Wind Acquisition and CVPS have elected not to purchase at the price as determined in accordance with Section 4.04(g) and otherwise upon terms and conditions that are not materially less favorable to the LLP Company than those specified in the Issuance Notice; provided, provided that, that if such issuance is subject to regulatory approval, such 10090-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from after the date of the Issuance Notice. At the consummation of such issuance, the LLP Company shall issue certificates representing the New Company Equity Securities to be purchased by the Class B Holders should they exercise their each Stockholder exercising preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities 4.04 registered in the name of each such Holder (and to any third party)Stockholder, against payment by such Holder (and to any third party) Stockholder of the purchase price for such New Company Equity Securities. If the LLP Company proposes to issue any class of New Company Equity Securities after such 10090-day period or on other terms materially less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.54.04.
(e) The LLP closing of any issuance of Company Equity Securities to Wind Acquisition and/or CVPS pursuant to this Section 4.04, shall not take place at the time and in the manner provided in the Issuance Notice; provided, however, that the time of the issuance may be further specified by the Company in a separate notice no later than 10 days after the date on which the price for such issuance shall be determined in accordance with Section 4.04(g). The Company shall be under any no obligation to consummate any proposed issuance of New Company Equity Securities, nor shall there be any liability on the part of the LLP Company to the Class B Holders any Stockholder, if the LLP Company has not consummated any proposed issuance of New Company Equity Securities pursuant to this Section 12.5 4.04 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in The preemptive rights under this Section 12.5 4.04 shall not apply to any Initial Public Offering made (i) issuances or sales of Company Equity Securities to employees, officers and/or directors of the Company pursuant to employee benefit or similar plans or arrangements of the Company approved in accordance with Section 2.07(i), (ii) issuances or sales of Company Equity Securities upon exercise, conversion or exchange of Company Equity Securities, which, when issued, were exempt from the preemptive rights, (iii) securities distributed or set aside ratably to all holders of Company Equity Securities on a per share equivalent basis, (iv) issuances or sales in, or in connection with, a Public Offering, a merger of the Company with or into another Person or an effective registration statement filed acquisition by the Company of another Person or substantially all the assets of another Person, subject to the provisions of Sections 2.07(g) and 2.07(j), (v) issuances of Company Equity Securities as a bona-fide “equity kicker” to a lender in connection with a debt financing that is permitted under Section 2.07(d) or (vi) issuances of Company Equity Securities specifically provided for in the Subscription Agreement. Upon any issuances or sales of Company Equity Securities Actas a unit with any other Company Equity Securities, the preemptive rights under this Section 4.04 shall be applicable to the entire unit rather than only the Company Equity Securities included in the unit.
(g) At any such time as the Company shall provide an Issuance Notice in accordance with Section 4.04(a), if Wind Acquisition and CVPS shall not have previously mutually agreed to the price at which the Company Equity Securities are proposed to be issued pursuant to such notice (including, without limitation, as part of the approval of such issuance pursuant to Section 2.07(e)), then Wind Acquisition and CVPS shall, for a period of 10 days following their receipt of the Issuance Notice, attempt to agree upon the price at which the Company Equity Securities shall be issued subject to the rights provided under this Section 4.04. If Wind Acquisition and CVPS shall so mutually agree, then the mutually agreed price shall be the price at which the Company Equity Securities shall be issued with respect to the corresponding Issuance Notice. If Wind Acquisition and CVPS shall be unable to agree upon such price by the expiration of such 10-day period, then within three Business Days after the expiration of such 10-day period (such third Business Day being referred to herein as the “Appraisal Process Commencement Date”), the Company shall select a nationally recognized investment banking firm (which may not be an Affiliate or the principal investment banking firm of either of Wind Acquisition or CVPS) (an “Appraiser”) and instruct the Appraiser to (i) prepare, within 30 days of the Appraisal Process Commencement Date, a report which sets forth the Appraiser’s determination of the fair value of the Company Equity Securities proposed to be issued (the “Fair Value of the Subject Interest”), which shall be a single amount as opposed to a range, and which includes work papers indicating the basis for and calculation of the Fair Value of the Subject Interest (an “Appraisal Report”) and (ii) deliver to the Company an oral and written opinion as to the Fair Value of the Subject Interest. The fees and expenses of the Appraiser shall be paid by the Company. The Company shall also instruct the Appraiser to deliver its Appraisal Report together with its oral and written opinions as to the Fair Value of the Subject Interest within 30 days after the Appraisal Process Commencement Date and determine the Fair Value of the Subject Interest by giving consideration to a range of analytical methodologies, potentially including, but not limited to, comparable trading analysis and marketability of the Company Equity Securities proposed to be issued, comparable transaction analysis and discounted cash flow analysis and valuing the Company as a going concern on a stand-alone basis without regard to synergies that might be achieved by a particular purchaser, and no consideration should be given to the values that are initially assigned to assets of the Company for purchase accounting or tax accounting purposes. In respect of any Issuance Notice for which an Appraisal Report is delivered, the product of the Fair Value of the Subject Interest divided by the number of such Company Equity Securities shall be the price at which such Company Equity Securities are proposed to be issued in connection with such Issuance Notice.
(h) CVPS’s and Wind Acquisition’s preemptive rights under this Section 4.04 shall be transferable only in connection with a Qualifying Rights Transfer.
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Samples: Stockholders' Agreement (Central Vermont Public Service Corp)
Preemptive Rights. (a) The LLP Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written Preemptive Rightholder notice (an “Issuance Notice”) of any proposed issuance by the LLP Company of any New Company Securities at least five (5) Business Days 10 days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Company Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New SecuritiesSubject to Section 5.05(g) below, each Class B Holder Preemptive Rightholder shall be entitled to purchase up to its Preemptive Share Portion of the New Company Securities proposed to be issued issued, at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise Each Preemptive Rightholder who desires to purchase any or all of its rights under this Section 12.5 by delivering Preemptive Portion of the Company Securities specified in the Issuance Notice shall deliver notice to the Company (each, an “Exercise Notice”) of its election to purchase such New Company Securities to the LLP within ten (10) Business Days of receipt of the Issuance NoticeNotice (the “Preemptive Option Period”). A delivery of such notice (which notice The Exercise Notice shall specify the number (or amount) of New Company Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) such Preemptive Rightholder and shall constitute exercise by such Preemptive Rightholder of its rights under this Section 5.05 and a binding agreement of such Holder it to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Company Securities specified in such Holder’s noticethe Exercise Notice. If, at the termination of such ten (10) Business Day-periodthe Preemptive Option Period, a Class B Holder any Preemptive Rightholder shall not have exercised its rights delivered an Exercise Notice to purchase its the Company, such Preemptive Shares of such New Securities, the Holder Rightholder shall be deemed to have waived all of its rights under this Section 12.5 5.05 with respect to, and only with respect to, to the purchase of such New Company Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) If any Preemptive Rightholder declines or fails to exercise its right to subscribe for its Preemptive Portion of the Company Securities proposed to be issued in full in accordance with Section 5.05(b) and there is at least one Preemptive Rightholder who has fully exercised its right of participation (the “Exercising Rightholder”), the Company shall promptly give notice thereof to each Exercising Rightholder. The LLP Exercising Rightholders shall have 100 a right of over-allotment, and may exercise an additional right to subscribe such unsubscribed Company Securities by notifying the Company in writing within ten (10) Business Days after receipt of notice; provided that if the Exercising Rightholders desire to subscribe in aggregate more than the number of such unsubscribed Company Securities, then such unsubscribed Company Securities will be allocated to the extent necessary among the Exercising Rightholders in accordance with their relative pro rata ownership of Shares on an as-converted basis.
(d) The Company shall have one hundred and twenty (120) days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Company Securities that the Class B Holders Preemptive Rightholders have not elected not to purchase pursuant to this Section 5.05 at the price and upon terms and conditions that are not materially less favorable to the LLP Company than those specified in the Issuance Notice, ; provided that, if such issuance is subject to regulatory approval, such 100120-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 one hundred and eighty (180) days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP Company proposes to issue any class of New such Company Securities after such 100120- day (or 180-day period or on other terms less favorable to the issuerday) period, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.55.05.
(e) The LLP shall not be under any obligation to consummate any proposed At the consummation of the issuance of New such Company Securities, nor the Company shall there be any liability on deliver a copy of its register of members updated to reflect such issuance and issue certificates representing the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Company Securities purchased by each Preemptive Rightholder exercising preemptive rights pursuant to this Section 12.5 5.05, against payment by such Shareholder of the purchase price for whatever reason, regardless of whether it shall have delivered an such Company Securities in accordance with the terms and conditions as specified in the Issuance Notice in respect of such proposed issuanceNotice.
(f) Each Preemptive Rightholder may elect to delegate its preemptive right to one or more of its Affiliate(s), provided that each of such Affiliate(s) shall meet the prerequisites and qualifications to become a Shareholder of the Company, and execute and deliver a joinder agreement to be bound by this Agreement in the form of Exhibit A attached hereto.
(g) Notwithstanding the foregoing, the provisions contained in no Preemptive Rightholder shall be entitled to purchase Company Securities as contemplated by this Section 12.5 shall not apply 5.05 in connection with issuances of (i) Company Securities (as appropriately adjusted for share subdivision, share dividends, combination, Recapitalizations and similar events) issued (or issuable pursuant to such Company Securities) to the Group Companies’ employees, officers, directors, consultants or any Initial Public Offering made other Persons qualified pursuant to the ESOP of the Company as duly adopted, (ii) Company Securities issued or issuable pursuant to a pro rata share subdivision, share dividend, combination, Recapitalization or other similar transaction of the Company, in each case, as duly approved, (iii) Ordinary Shares issued upon the conversion of Preferred Shares, (iv) Company Securities issued in connection with the exercise of the right under any convertible securities, provided that the issuance of such convertible securities has been duly approved, (iv) Company Securities issued pursuant to an effective registration statement filed under IPO and (v) Company Securities issued in connection with any bona fide, arm’s-length direct or indirect merger, consolidation, asset acquisition or similar transaction where the Securities ActCompany proposes to acquire substantially all of the assets of, or more than fifty percent (50%) of equity interest or voting power in, the target entity.
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Preemptive Rights. (a) The LLP Each member of the LGB Group (collectively, the “Preemptive Buyers”), shall give each Class B Holder that is an “accredited investor” have the preemptive right of subscription with respect to all issuances by the Company of equity securities (as defined in Rule 501(aor securities having significant equity features) of Regulation D promulgated under the Company or securities convertible or exchangeable into, equity securities (or securities having significant equity features) of the Company, including options, warrants and convertible debt securities (collectively, “Equity Securities”); provided, however, that such preemptive right shall not be applicable to any issuance made pursuant to an employee stock option plan, restricted stock plan or stock ownership plan of the Company. Equity Securities Act(other than any issuance thereof made pursuant to an employee stock option plan of the Company) written are referred to herein as “Covered Equity Securities”.
(b) If the Company proposes to issue any Covered Equity Securities, it shall deliver to each Preemptive Buyer a notice to that effect, which notice shall set forth the amount and class of Covered Equity Securities proposed to be issued, the proposed issuance price and the other terms of such proposed issuance. During the period of 15 days following the date of such notice (the “Subscription Period”), each Preemptive Buyer shall have the right to deliver to the Company and each other Preemptive Buyer an irrevocable notice (a “Issuance Subscription Notice”) of any proposed issuance by the LLP of any New Securities electing to purchase, at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class price, an amount of such New Covered Equity Securities determined in accordance with Section 5.01(c).
(c) If the proposed issuance of the Covered Equity Securities is consummated, each Preemptive Buyer delivering one or more Subscription Notices shall have the right to purchase from the Company, and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder Company shall be entitled required to purchase sell to each such Preemptive Buyer, at the proposed issuance price, up to its Preemptive Share an amount of Covered Equity Securities (rounded to avoid fractional Covered Equity Securities) equal to the New product of (i) the total amount of Covered Equity Securities proposed to be issued at by the price and on the other terms and conditions specified in the Issuance Notice.
Company multiplied by (bii) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Noticefraction, the number (or amount) numerator of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder which shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained number of shares of Common Stock then owned by dividing such Preemptive Buyer and the denominator of which shall be equal to the total number of shares of Common Stock then outstanding. The closing of such sale shall occur at 12:00 noon on the first business day which is the later of (x) such Electing Member’s Preemptive Share by (yi) the sum day of consummation of the issuance of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Covered Equity Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice Persons other than Preemptive Buyers (which notice shall specify may not be earlier than the number date set forth in clause (or amountii) of such additional New Securities to be purchased by such Electing Memberbelow) by an Electing Member shall constitute a binding agreement of such Member to purchase, at and (ii) the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder day that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 at least 15 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until after the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date Subscription Period at the principal office of the Issuance Notice. At Company, or at such other time and place as the consummation of such issuance, Company and the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise Preemptive Buyers exercising their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5mutually agree upon.
(d) The Class B Holders hereby acknowledge Any Covered Equity Securities proposed to be issued and agree that the LLP, due not purchased by any Preemptive Buyer pursuant to timing constraints, confidentiality considerations, or other reasons, Section 5.01(c) may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered be sold by the LLP under this Company to any other Person at a price not lower than the proposed issuance price specified in the notice to Preemptive Buyers described in Section 12.55.01(b).
(e) The LLP shall not be under In the event that the Company accepts consideration other than cash in connection with any obligation to consummate any proposed issuance of New Covered Equity Securities, nor shall there be for purposes of determining the exercise price of any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities preemptive right pursuant to this Section 12.5 for whatever reasonArticle V, regardless the value of whether it the non-cash portion of the purchase price paid by any Person to whom Covered Equity Securities are issued or sold shall have delivered be determined by an Issuance Notice in respect independent appraiser selected jointly by the Board and the Preemptive Buyers. The exercise price of such proposed issuancepreemptive rights of subscription granted pursuant to this Article V shall be payable in cash.
(f) Notwithstanding the foregoing, the provisions contained in this This Section 12.5 5.01 shall not apply to any registered offering of Common Stock. This Section 5.01 shall terminate upon the closing of the Initial Public Offering made pursuant to an effective registration statement filed under the Securities ActOffering.
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Preemptive Rights. Each Stockholder that wishes to subscribe for up to such Stockholder’s Pro Rata Share of New Securities (a) The LLP each, a “Subscribing Stockholder”), upon the same economic terms and subject to the conditions set forth in the Preemptive Rights Notice, shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) deliver written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions Company within twenty (20) days of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share date of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Preemptive Rights Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (, which notice shall specify the number (or amount) of New Securities (not to be purchased by a Class B Holderexceed such Subscribing Stockholder’s Pro Rata Share thereof) by a Class B Holder that such Subscribing Stockholder desires to acquire in the Subject Issuance. Preemptive Rights Closing. The closing (an the “Electing MemberPreemptive Rights Closing”) of the purchase by the Subscribing Stockholders of New Securities pursuant to this Article VI shall constitute a binding agreement take place at the principal office of such Holder to purchasethe Company either, at the price and option of the Company, (a) on the terms and conditions thirtieth (30th) day after the date of the Preemptive Rights Notice (or if such thirtieth (30th) day is not a Business Day, then on the next succeeding Business Day) or (b) simultaneously with (and, if specified in by the Issuance NoticeCompany, as a part of) the closing of, the number (or amount) of New Securities specified in such Holder’s noticeSubject Issuance. If, at At the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New SecuritiesRights Closing, the Holder Company shall be deemed deliver to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, each Subscribing Stockholder an original certificate or other appropriate instrument evidencing the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price Subscribing Stockholder and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities registered in the name of each such Holder (and to any third partySubscribing Stockholder or its designated nominee(s), against payment by such Holder (to the Company of the appropriate consideration therefor. The New Securities issued pursuant to this Article VI shall be duly authorized, fully paid and non-assessable, not subject to any third party) Lien and freely transferable subject only to compliance with any applicable securities laws. Form of the purchase price Consideration. All payments for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 Article VI shall be made in accordance with the payment terms specified in the Preemptive Rights Notice (deferred, contingent or otherwise) and shall be made in cash, notwithstanding any other payment terms offered to the Company by the proposed subscriber. If the proposed consideration for whatever reasonany such sale specified in the Preemptive Rights Notice is to be paid in any property other than cash, regardless the Company shall engage and instruct a reputable independent accounting firm (not acting or representing the Company in other matters at that time) to prepare a valuation of whether it shall have delivered an Issuance Notice such property. The costs of such accounting firm in respect of such proposed issuancevaluation shall be borne by the Company.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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Preemptive Rights. (a) 4.1. The LLP shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior Company hereby grants to the proposed issuance date. The Issuance Notice shall specify Preemptive Stockholders the number and class of such New Securities and right (but not the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled obligation) to purchase up to its Preemptive Share pro rata share of any New Securities that the Company may, from time to time, propose to sell and issue. A pro rata share of any New Securities is the portion of the New Securities obtained by multiplying the total New Securities proposed to be issued at by a fraction, the numerator of which is the number of shares of Common Stock then held by the Preemptive Stockholder (assuming the conversion and exercise into Common Stock of all Equity Securities then held by the Preemptive Stockholder), and the denominator of which is the total number of shares of Common Stock then outstanding (assuming the conversion and exercise into Common Stock of all Equity Securities outstanding on such date). Each Preemptive Stockholder shall have a right of over allotment such that if any Preemptive Stockholder fails to exercise its purchase rights hereunder, the other Preemptive Stockholders may elect to purchase such non-purchasing Preemptive Stockholder’s allotment on a pro rata basis.
4.2. In the event the Company proposes to undertake an issuance of New Securities, it shall give each of the Preemptive Stockholders written notice of its intention, describing the type of New Securities, the price and on the other general terms upon which the Company proposes to issue the same. A Preemptive Stockholder shall have fifteen (15) Business Days from the date of receipt of any such notice to notify the Company of its intent to purchase all or a portion of its pro rata share of the New Securities for the price and conditions upon the general terms specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 notice by delivering giving written notice to the Company and stating therein the quantity of its election to purchase such New Securities to be purchased.
4.3. In the LLP event and to the extent a Preemptive Stockholder does not notify the Company of its decision to exercise the rights granted hereunder within the fifteen (15) Business Day period, the Company shall notify any Preemptive Stockholders that have elected to exercise their rights and such Preemptive Stockholders shall have ten (10) Business Days from the date of receipt of such further notice to notify the Issuance Notice. A delivery Company of such notice (which notice shall specify their intent to exercise their respective over allotment rights with respect to the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder that the other Preemptive Stockholders have declined to purchase, at . In the price event and on to the terms and conditions specified in extent that the Issuance Notice, Preemptive Stockholders do not exercise the number (or amount) of New Securities specified in such Holder’s notice. If, at rights granted hereunder with respect to the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder Company shall be deemed have ninety (90) days from the date notice is provided to have waived all the Preemptive Stockholders pursuant to Section 4.2 to effect the sale of its rights under this Section 12.5 with respect to, the New Securities at a price and only with respect toon terms no more favorable to the purchasers thereof than those offered to the Preemptive Stockholders. In the event the sale is not effected within the ninety (90) day period, the purchase of such New Securities. If less than 100% of Company shall not issue or sell the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (without first offering the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified Preemptive Stockholders in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, manner provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.54.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) 4.4. Notwithstanding the foregoing, in no event shall the provisions contained in this Section 12.5 shall Company be required to sell any New Securities to a Stockholder that is not apply to any Initial Public Offering made pursuant to an effective registration statement filed “accredited investor” as such term is defined under the Securities ActAct at the time of such proposed sale.
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Preemptive Rights. (a) The LLP Company shall give each Class B Holder that is an “accredited investor” of the Initial Members (as defined in Rule 501(a) of Regulation D promulgated under the Securities Actand their Permitted Transferees) written notice (an “Issuance Notice”) of any proposed issuance by the LLP Company of any New Equity Securities at least five twenty (520) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Equity Securities are to be issued and the other material terms and conditions of the issuanceissuance (including the terms of the Equity Securities proposed to be issued). If any proposed purchaser will purchase any such New SecuritiesSubject to Section 3.07(f), each Class B Holder of the Initial Members shall be entitled to purchase (or to cause its Affiliates to purchase) up to its Preemptive Share respective Membership Percentage of the New Equity Securities proposed to be issued issued, at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise If any Initial Member (or its rights under this Section 12.5 by delivering Permitted Transferees) desires to purchase or to have any of its Affiliates purchase any or all of its Membership Percentage of the Equity Securities specified in the Issuance Notice, it shall deliver a written notice to the Company (each a “Preemptive Rights Exercise Notice”) of its election to purchase such New Equity Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice The Preemptive Rights Exercise Notice shall specify the number (or amount) of New Equity Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) such party or its Affiliates and shall constitute exercise by such party of its rights under this Section 3.07 and a binding agreement of such Holder party or such party’s applicable Affiliates to purchase, at the price and on the terms and conditions specified in the Issuance NoticeNotice and in accordance with the terms of this Section 3.07, the number of shares (or amount) of New Equity Securities specified in the Preemptive Rights Exercise Notice with such Holder’s noticepurchase to be consummated as promptly as reasonably practicable. If, at the termination of such ten (10) Business DayBusiness-Day period, a Class B Holder any Initial Member (or its Permitted Transferees) shall not have exercised its rights delivered a Preemptive Rights Exercise Notice to purchase its Preemptive Shares of the Company, such New Securities, the Holder party shall be deemed to have waived all of its rights under this Section 12.5 3.07 with respect to, and only with respect to, to the purchase of such New Equity Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at Promptly following the termination of such five ten (510) Business Day-Day period, a Class B Holder that is an Electing Member the Company shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed deliver to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date each of the Issuance Notice to consummate the proposed issuance Initial Members (or its Permitted Transferees) a copy of any Preemptive Rights Exercise Notice it has received or all notify each of such New Securities the Initial Members that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals no Preemptive Rights Exercise Notices have been received, but in no event later than 120 days from the date of the Issuance received (each a “Second Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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Samples: Agreement of Contribution and Sale (Change Healthcare Holdings, Inc.)
Preemptive Rights. (a) The LLP Subject to Section 3.02(e), the Company shall, or shall cause its Subsidiaries, as the case may be, to give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written Investor notice (an “Issuance Notice”) of any proposed issuance by the LLP Company of any New Company Securities (together, “Subject Securities”) at least five (5) ten Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Subject Securities are to be issued, the Person to which the Subject Securities shall be issued (the “Subscriber”) and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New SecuritiesSubject to Section 3.02(e), each Class B Holder the Investor shall be entitled to purchase up to an amount equal to its Preemptive Share of Aggregate Ownership Percentage (determined immediately before giving effect to the New issuance) multiplied by the Subject Securities proposed to be issued issued, at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder The Investor may exercise elect to purchase any or all of the amount equal to its rights under this Section 12.5 Aggregate Ownership Percentage multiplied by the Subject Securities specified in the Issuance Notice by delivering written notice to the Company (each, an “Exercise Notice”) of its election to purchase such New Subject Securities to the LLP within ten (10) Business Days of following receipt of the Issuance Notice. A delivery of such notice (which notice shall specify , specifying the number (or amount) of New Subject Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) the Investor and shall constitute exercise by the Investor of its rights under this Section and a binding agreement of such Holder the Investor to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Subject Securities specified in such Holder’s noticethe Exercise Notice. If, at the termination of such ten (10) Business Dayten-Business-Day period, a Class B Holder the Investor shall not have exercised its rights delivered an Exercise Notice to purchase its Preemptive Shares of such New Securitiesthe Company, the Holder Investor shall be deemed to have waived all of its rights under this Section 12.5 3.02 with respect to, and only with respect to, to the purchase of such New Subject Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP Company or the applicable Subsidiary, as the case may be, shall have 100 ninety days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Subject Securities that the Class B Holders have Investor has not elected not to purchase to the Subscriber at the price and upon terms and conditions that are not less favorable to the LLP Company or such Subsidiary, as the case may be, than those specified in the Issuance Notice, ; provided that, if such issuance is subject to regulatory approval, such 10090-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP Company or the applicable Subsidiary, as the case may be, proposes to issue any class of New such Subject Securities after such 10090-day period or on other terms less favorable to the issuerperiod, it shall again comply with the procedures set forth in this Section 12.53.02.
(d) The Class B Holders hereby acknowledge and agree that At the LLPconsummation of the issuance of such Subject Securities, due the Company shall issue upon the written request of the Investor, certificates representing the Subject Securities to timing constraintsbe purchased by the Investor registered in the name of the Investor, confidentiality considerations, or other reasons, may request that a Class B Holder (against payment by the “Purchasing Member”), acquire New Investor of the purchase price for such Subject Securities in advance of complying accordance with the requirements of this Section 12.5, terms and each Class B Holder consents to such issuance, provided that, conditions as promptly as practicable thereafter, either (i) specified in the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5Issuance Notice.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in Investor shall not be entitled to purchase Subject Securities as contemplated by this Section 12.5 shall not apply 3.02 in connection with:
(i) any grant of options, restricted shares, performance units or the issuance of any Subject Securities pursuant to the exercise of share options, restricted shares or performance units granted (whether prior to, on or after the date of this Agreement), pursuant to any Initial Public Offering made pursuant duly approved equity compensation, share purchase or share option plans of the Company in effect from time to time established for the purpose of retaining and compensating employees, consultants, directors and other service providers of the Company, provided that at the time of such issuance, the aggregate of all such issuances of Subject Securities under this subsection in the preceding 12 month-period does not represent an effective registration statement filed amount exceeding 20% of the then total outstanding share capital of the Company;
(ii) Subject Securities issued or issuable in connection with a bona fide business acquisition by the Company or its Subsidiaries with a third party whether by merger, consolidation, sale of assets, sale or exchange of shares or otherwise; provided that at the time of such issuance, the aggregate of all such issuances of Subject Securities under this subsection in the preceding 12 month-period does not represent an amount exceeding 20% of the then total outstanding share capital of the Company;
(iii) Subject Securities Actissued or issuable to Persons with which the Company has bona fide business relations provided that the primary purpose for such issuances is not equity financing; provided further that at the time of such issuance, the aggregate of all such issuances of Subject Securities under this subsection in the preceding 12 month-period does not represent an amount exceeding 1% of the then total outstanding share capital of the Company.
Appears in 1 contract
Preemptive Rights. (a) The LLP shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior Subject to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in this Section 3, the Issuance Company hereby grants to each of PrefCo and PLC a right of first offer, proportionate to their respective Percentage Interest, with respect to future sales by the Company or Subsidiaries of Interests or other equity interests of the Company or any of its Subsidiaries (the “Offered Interests”); provided, however, that this Section 3 shall not apply to any issuances to an unaffiliated third party in connection with the Company’s entry into a bona fide joint venture transaction with such unaffiliated third party so long as such unaffiliated third party agrees to subordinate its interest in such joint venture to the Preferred Units in a manner satisfactory to the holders of Preferred Units. Each time the Company or any Subsidiary proposes to offer or sell any Offered Interests, the Company shall first make an offering of such Offered Interests to each of PrefCo and PLC in accordance with the following provisions:
3.1 No later than thirty (30) days prior to selling the Offered Interests, the Company shall deliver written notice (the “Notice”) to PrefCo and PLC stating (i) its bona fide intention to offer such Offered Interests, (ii) the number and description of such Offered Interests to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such Offered Interests.
3.2 By written notification received by the Company, within twenty (b20) A Class B Holder days after giving of the Notice, each of PrefCo and PLC may exercise its rights under this Section 12.5 by delivering notice of its election elect to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchaseobtain, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination up to that portion of such ten (10) Business Day-period, a Class B Holder shall not have exercised Offered Interests which equals its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect torespective Percentage Interest, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders PrefCo and PLC shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to thereafter purchase such additional New Securities to the LLP Offered Interests within five (5) Business Days calendar days following the expiration of receipt such twenty (20) day period.
3.3 If either PrefCo or PLC fail to, or indicate in writing that it will not, exercise the option within the period provided in Section 3.2, the Company may, during the thirty (30) day period following the expiration of the Issuance Notice. A delivery of such notice (which notice shall specify period provided in Section 3.2, offer the number (Offered Interests not subscribed for PrefCo or amount) of such additional New Securities PLC to be purchased by such Electing Member) by an Electing Member shall constitute any Person or Persons at a binding agreement of such Member to purchaseprice not less than, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less no more favorable to the LLP offeree than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class Company does not enter into such an agreement for the sale of New Securities after the Offered Interests within such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerationsperiod, or other reasonsif such agreement is not consummated within sixty (60) days of the execution thereof, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5right provided hereunder shall be deemed to be revived, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP Offered Interests shall not be under any obligation offered unless first reoffered to consummate any proposed issuance each of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice PrefCo and PLC in respect of such proposed issuanceaccordance herewith.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Investors' Rights Agreement (Capital Park Holdings Corp.)
Preemptive Rights. (a) The LLP Subject to Sections 4.4(b) and 5.3(d), the Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) Shareholder a notice of Regulation D promulgated under any proposed issuance by the Securities Act) written notice Company of any Shares (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five fifteen (515) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and Shares proposed to be issued, the price at which such New Securities Shares are to be issued issued, the type and amount of consideration offered for the proposed issuance and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder Each Shareholder may exercise its rights under this Section 12.5 elect to purchase any or all of the Shares specified in the Issuance Notice up to such Shareholder’s Pro Rata Portion, by delivering a written notice of its election to purchase such New Securities to the LLP Company (an “Exercise Notice”) within ten (10) Business Days of following receipt of the Issuance Notice. A delivery of such notice (which notice shall specify , setting out the number (or amount) of New Securities Shares to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) such Shareholder. Such Exercise Notice shall constitute exercise by such Shareholder of its rights under this Section 5.3 and a binding agreement of such Holder Shareholder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities Shares specified in such Holder’s noticethe Exercise Notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder any Shareholder shall not have exercised its rights delivered an Exercise Notice to purchase its Preemptive Shares of the Company, such New Securities, the Holder Shareholder shall be deemed to have waived all of its rights under this Section 12.5 5.3 with respect to, and only with respect to, to the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightShares.
(c) The LLP Company shall have 100 ninety (90) calendar days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase Shares at the price and upon terms and conditions that are not materially less favorable to the LLP Company than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the On or before consummation of such issuance, the LLP any Person to whom Shares are issued (unless already bound hereby) shall issue the New Securities agree in writing to be purchased bound by the Class B Holders should they exercise their preemptive rights pursuant to terms of this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New SecuritiesAgreement as a “Shareholder”. If the LLP Company proposes to issue any class of New Securities Shares after such 10090-day period or on other terms less favorable to the issuerperiod, it shall again comply with the procedures set forth in this Section 12.55.3.
(d) The Class B Holders hereby acknowledge and agree that Notwithstanding the LLPforegoing, due no Shareholder shall be entitled to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of purchase any Shares as contemplated by this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either 5.3 in connection with issuances of Shares
(i) to employees or directors of the LLP complies with the requirements Company or any of this Section 12.5 with respect thereto or its Subsidiaries pursuant to any equity incentive plans, (ii) issued in connection with any share dividend, share split, reverse share split, reclassification or similar changes in the Purchasing Member offers capital structure of the other Class B Holders the right to acquire from the Purchasing Member that number Company or any of its Subsidiaries, or (iii) in connection with any bona fide, arm’s-length direct or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) indirect merger, acquisition or similar transaction, in each case duly approved pursuant hereto. The LLP Company shall not be under any obligation obligated to consummate any proposed issuance of New SecuritiesShares, nor shall there be liable to any liability on the part of the LLP to the Class B Holders Shareholder if the LLP Company has not consummated any proposed issuance of New Securities Shares pursuant to this Section 12.5 5.3 for whatever reason, regardless of whether it shall have delivered an Issuance Notice or received any Exercise Notices in respect of such proposed issuance.
(e) For the avoidance of doubt, the initial percentage of total share capital of the Company is not guaranteed in the case of an increase in capital of the Company by one Party where the other Party declines to make a capital contribution corresponding to its initial percentage of total share capital of the Company. Anti-dilution protection shall be available to each Party in the event of an increase in capital or issuance of additional Shares of the Company. Each Party will have preemptive rights as set forth in this Section 5.3 to make a capital contribution or subscribe to such additional Shares so as to retain its respective initial percentage of total share capital of the Company and avoid dilution. If either Party fails to exercise its preemptive rights, such Party will not be able to retain its initial percentage of total share capital of the Company and will result in a dilution.
(f) Notwithstanding the foregoing, the provisions contained anything in this Section 12.5 shall not apply Agreement to any the contrary, AV has the right to increase its percentage of total share capital of the Company to up to nineteen percent (19%) at the Initial Public Offering made pursuant Share Price by making a capital contribution in cash, up to an effective registration statement filed under 1,968,641,975 JPY, which is expected to occur prior to the Securities Act.month immediately previous to the 1st Flight Test at [***] as specified in the Initial Business Plan attached hereto as Exhibit C (such right, “AV’s
Appears in 1 contract
Samples: Joint Venture Agreement
Preemptive Rights. (a) The LLP At any time prior to a Public Company Transition Date, except in connection with any initial public offering, a SPAC Transaction or any transaction that would result in a Change of Control or as otherwise expressly contemplated by this Agreement, Parent Entity and Holdings shall give each Class B Holder that not issue any Equity Interests unless such issuance is an “accredited investor” (as defined in Rule 501(a) compliance with the following procedures: Prior to the date of Regulation D promulgated under the Securities Act) written a proposed issuance of any Equity Interests, Parent Entity or Holdings shall deliver notice of such proposed issuance (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance dateAgent. The Issuance Notice shall specify (i) the number of Equity Interests and class of such New Securities Equity Interests which Parent Entity or Holdings proposes to issue, the consideration to be received therefor and the price at date on which such New Securities are to consideration for such Equity Interests shall be issued paid (which date shall be no less than thirty (30) days from the date of delivery of the Issuance Notice); (ii) all of the material terms and conditions, including the other material terms and conditions of payment, upon which Parent Entity or Holdings proposes to issue such Equity Interests; (iii) the issuance. If any proposed purchaser will purchase any proportionate number of such New Securities, each Class B Holder Equity Interests that Agent shall be entitled have the option to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within 6.20, which proportionate number shall be no less than ten percent (10%) Business Days of receipt the number of Equity Interests which Parent Entity or Holdings proposes to issue (such proportionate number for Agent, its “Pro-Rata-Share”); and (iv) where the proposed purchasers of such Equity Interests are known, the identities of such proposed purchasers. Upon delivery of an Issuance Notice, Agent shall have the right (exercisable by delivery to Parent Entity or Holdings, as applicable, of written notice within the thirty (30) day period following the date of delivery of the Issuance Notice. A delivery ), to purchase its Pro-Rata-Share of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, offering at the price and on the terms and conditions contained therein. The foregoing preemptive rights shall be deemed waived by Agent if it does not exercise its preemptive right and pay for the Equity Interests within the period of time prescribed by the Issuance Notice in accordance with this Section 6.20. Notwithstanding anything to the contrary contained in this Section 6.20, if the consideration to be received by Parent Entity or Holdings, as applicable, with respect to the issuance of Equity Interests specified in the Issuance NoticeNotice is other than cash to be paid upon the issuance of the Equity Interests (that is, if the number (consideration would constitute so-called “in-kind” property, such as membership interests or amount) other Equity Interests), or if security is to be provided to secure the payment of New Securities any deferred portion of the purchase price, then Agent may 66 purchase such Equity Interests by making a cash payment at the time of the closing specified in such Holder’s notice. Ifthe offer, at in the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% amount of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares reasonably equivalent value of such New Securities (the “Nonin-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions kind” property specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder Notice and/or may provide reasonably equivalent security to that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified provided in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Loan and Security Agreement (Katapult Holdings, Inc.)
Preemptive Rights. (a) The LLP In the event that the Company or any Appgate Entity proposes to issue New Securities to any Person, in each case, the Board of Managers shall give provide written notice thereof to each Class B C Common Rights Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date). The Issuance Notice shall specify set forth (i) the Company’s or such Appgate Entity’s bona fide intention to offer such New Securities, (ii) the number and class of such New Securities that are available for issuance pursuant to this Section 3.04 and (iii) the price at and terms, if any, upon which it proposes to offer such New Securities.
(b) For a period of 10 days from delivery of the Issuance Notice, each Class C Common Rights Holder shall have the right to elect, by giving written notice to the Company, to purchase up to its respective Preemptive Right Pro-Rata Percentage of the New Securities available for issuance pursuant to this Section 3.04. At the expiration of such 10 day period, the Company shall promptly notify in writing each Class C Common Rights Holder that elects to purchase its full Preemptive Right Pro-Rata Percentage of such New Securities are (each a “Preemptive Right Electing Member”) of any other Class C Common Rights Holder’s failure to be issued and do so. For a period of 5 days (the other material terms and conditions of “Subscription Period”) after the issuance. If any proposed purchaser will purchase any Company has delivered such New Securitiesnotice, each Class B Holder shall be entitled Preemptive Right Electing Member may, by giving written notice to the Company, elect to purchase up to its Preemptive Share Right Pro-Rata Percentage of the New Securities proposed that were not subscribed for by the other Class C Common Rights Holders pursuant to be issued the first sentence of this Section 3.04(b). If at the price and on end of the other terms and conditions specified in the Issuance Notice.
Subscription Period (bi) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such there remain New Securities that have not been subscribed for by such Class C Common Rights Holder and the Preemptive Right Electing Members and (ii) there remain additional Preemptive Right Electing Members who wish to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such subscribe for additional New Securities, then the Holder Company shall be deemed to have waived all follow the procedures set forth in the second sentence of its rights under this Section 12.5 with respect to, and only with respect to, 3.04(b) as frequently as necessary during the purchase 2 day period immediately following the end of the Subscription Period until all such remaining New Securities have been fully subscribed for or there are no longer any Preemptive Right Electing Members who wish to subscribe for additional New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective ; provided, however, if at any time there is only one Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Right Electing Member which shall have exercised its right who wants to purchase 100% of such Electing Member’s Preemptive Share of such buy additional New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Preemptive Right Electing Member shall have the right to elect option to purchase a number or up to the entire amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such then available additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightSecurities.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Preemptive Rights. Premier hereby grants to Infusion the right to purchase all New Securities (adefined below) The LLP which Premier may propose, during the Term and any renewal of this Agreement, to sell or issue, subject to and in accordance with the following provisions:
32.1 In the event that Premier proposes to undertake an issuance of New Securities, Premier shall give each Class B Holder that is Infusion an “accredited investor” Offer Notice (defined below), which shall constitute an offer by Premier to Infusion to purchase the New Securities as provided in this Section 32. Infusion shall have the right, exercisable by giving an Acceptance (defined in Rule 501(abelow) to Premier within fifteen (15) days following the date of Regulation D promulgated under receipt of such Offer Notice, to purchase the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior the price and upon the terms specified in the Offer Notice. Infusion shall be obligated to purchase the proposed issuance date. The Issuance Notice shall specify quantity of New Securities stated in its Acceptance and to close such purchase within 90 days from the number and class date of such New Securities and Acceptance.
32.2 In the price at which such New Securities are to be issued and event that the other material terms and conditions quantity of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at sold by Premier exceeds the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) aggregate quantity of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchasefor which Infusion has given Acceptance, at the price and on the terms and conditions specified in the Issuance Notice, the number within 90 days thereafter Premier may sell (or amount) enter into an agreement pursuant to which the sale of the New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder covered thereby shall be deemed to have waived all of its rights under this Section 12.5 with respect toclosed, and only with respect toif at all, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 90 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such said agreement (a "Sale Agreement")) those New Securities that the Class B Holders have elected for which Infusion's preemptive rights were not to purchase exercised in accordance with Section 32.1, at the a price and upon terms and conditions that are not less no more favorable in any respect to the LLP a purchaser thereof than those specified in the Issuance Offer Notice, provided that, if such issuance is subject to regulatory approval, such 100. In the event that Premier has not sold (or entered into a Sale Agreement covering) all of the New Securities within said 90-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue or sold and issued the New Securities to be purchased by sold pursuant to the Class B Holders should they exercise their Sale Agreement within 90 days from the date thereof), Premier shall not issue or sell any New Securities without first offering such securities to Infusion in the manner required hereby.
32.3 Infusion may assign its preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in one or more persons or entities or arrange for the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the exercise or purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period through the exercise of these preemptive rights by any one or on more other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5persons or entities.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.32.4 For purposes hereof:
Appears in 1 contract
Samples: Management Services Agreement (Premier Concepts Inc /Co/)
Preemptive Rights. (a) The LLP Subject to Section 4.03(e), the Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP Company of any New Company Securities (the “Subject Shares”) to each Shareholder (a “Preemptive Rights Holder”) at least five twenty (520) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class type of such New Company Securities and to be issued, the price per share at which such New Securities Subject Shares are to be issued and the any other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New SecuritiesSubject to Section 4.03(e), each Class B Preemptive Rights Holder shall be entitled to purchase up to its a percentage of such Subject Shares equal to such Preemptive Share of Rights Holder’s Aggregate Ownership Percentage (determined immediately before giving effect to the New Securities proposed to be issued issuance), at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Each Preemptive Rights Holder may exercise elect to purchase any or all of its rights under this Section 12.5 Aggregate Ownership Percentage of the Subject Shares specified in the Issuance Notice by delivering written notice to the Company (each, an “Exercise Notice”) of its election to purchase such New Securities to the LLP Subject Shares within ten fifteen (1015) Business Days of following receipt of the Issuance Notice. A delivery of such notice (which notice shall specify , specifying the number (or amount) of New Securities Subject Shares to be purchased by a Class B Holder) by a Class B such Preemptive Rights Holder (an “Electing Member”) and shall constitute exercise by such Preemptive Rights Holder of its rights under this Section 4.03 and a binding agreement of such Preemptive Rights Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities Subject Shares specified in such Holder’s noticethe Exercise Notice. If, at the termination expiration of such ten fifteen (1015) Business Day-Day period, a Class B any Preemptive Rights Holder shall has not have exercised its rights delivered an Exercise Notice to purchase its the Company, such Preemptive Shares of such New Securities, the Rights Holder shall be deemed to have waived all of its rights under this Section 12.5 4.03 to purchase its Aggregate Ownership Percentage of such Subject Shares. For the avoidance of doubt, each Preemptive Rights Holder that fully exercises its preemptive rights with respect to, and only to any issuance of Subject Shares will not have any oversubscription right with respect toto any Subject Shares that are not subscribed by other Preemptive Rights Holders. Subject to Section 3.01(b) and Section 7.08, each Preemptive Rights Holder may, by providing written notice thereof to the purchase of such New Securities. If less than 100% Company in its Exercise Notice, allocate the amount of the Class B Holders shall have exercised their rights Subject Shares that such Preemptive Rights Holder is entitled to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right pursuant to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of 4.03(a) among its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightAffiliates.
(c) The LLP Company shall have 100 ninety (90) days from the date of the Issuance Notice (the “Issuance Period”) to consummate the proposed issuance of any or all of such New Securities Subject Shares that the Class B Preemptive Rights Holders have not elected not to purchase at the same or higher price and upon terms and conditions that are not in the aggregate less favorable to the LLP Company than those specified in the Issuance Notice, ; provided that, if such issuance is subject to regulatory approval, such 100-day period the Issuance Period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 one hundred twenty (120) days from the date of the Issuance Notice. At ; provided further, that such Person to which the consummation of such issuance, the LLP Company shall issue such Subject Shares shall have executed and delivered a Deed of Adherence to the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New SecuritiesCompany. If the LLP Company proposes to issue any class of New Securities such Subject Shares after such 100-day period the Issuance Period (as may be extended for obtaining regulatory approval) or on a different price or on other terms that are in the aggregate less favorable to the issuerCompany, it shall again comply with the procedures set forth in this Section 12.54.03.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying In connection with the requirements consummation of this Section 12.5the issuance of such Subject Shares, and the Company shall deliver to each Class B Preemptive Rights Holder consents a copy of its register of members updated to reflect such issuance, provided that, as promptly as practicable thereafter, either (i) against payment by such Preemptive Rights Holder of the LLP complies purchase price for such Subject Shares in accordance with the requirements of this Section 12.5 with respect thereto or (ii) terms and conditions as specified in the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5Issuance Notice.
(e) Notwithstanding the foregoing, no Preemptive Rights Holder shall be entitled to purchase Subject Shares as contemplated by this Section 4.03 in connection with issuances of Subject Shares (i) to management, employees or consultants of the Group Companies pursuant to any equity incentive plan established for the benefit of such Persons (the “Employee Plans”) that has been duly approved in accordance with this Deed and the Articles, including upon the exercise of employee share options granted pursuant to the Management Equity Grant, the New Management Equity Grant or any other Employee Plans, (ii) in connection with any share dividend or distribution, share split or subdivision, reverse share split or consolidation, reclassification or similar changes in the capital structure of the Company that is effected on a pro rata basis with respect to all outstanding Shares and is duly approved in accordance with this Deed and the Articles, (iii) in connection with any direct or indirect merger, acquisition or similar transaction (including the terms of the proposed issuance in connection therewith) that has been duly approved in accordance with Section 2.08(a)(ii) including by each Investor Director or in accordance with Section 2.08(b)(ii) or Section 2.08(b)(iii) by each relevant Major Shareholder, as applicable, and the Articles, (iv) in connection with any Public Listing, IPO or QIPO that is duly approved in accordance with this Deed and the Articles, (v) pursuant to the Subscription Agreements, (vi) upon the conversion, exchange or exercise of any equity or debt securities issued by the Company in compliance with this Deed and the Articles, or (vii) to any third party lenders as “equity kickers” in connection with a loan transaction pursuant to any agreement or arrangement (including the terms of the proposed issuance) that has been duly approved by each Major Shareholder in accordance with Section 2.08(b)(vii) and the Articles.
(f) The LLP Company shall not be under any obligation obligated to consummate any proposed issuance of New SecuritiesSubject Shares, nor shall there be liable to any liability on the part of the LLP to the Class B Holders Preemptive Rights Holder if the LLP Company has not consummated any proposed issuance of New Securities Subject Shares pursuant to this Section 12.5 4.03 for whatever reason, regardless of whether it shall have delivered an Issuance Notice or received any Exercise Notices in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Series B Preferred Share Subscription Agreement (GDS Holdings LTD)
Preemptive Rights. (a) The LLP Subject to Section 3.04(e), the Company shall, or shall cause its Subsidiaries, as the case may be, to give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written Investor notice (an “Issuance Notice”) of any proposed issuance by the LLP Company of any New Company Securities (together, “Subject Securities”) at least five twenty (520) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Subject Securities are to be issued, the Person to which the Subject Securities shall be issued (the “Subscriber”) and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New SecuritiesSubject to Section 3.04(e), each Class B Holder the Investor shall be entitled to purchase up to an amount equal to its Preemptive Share of Aggregate Ownership Percentage (determined immediately before giving effect to the New issuance) multiplied by the Subject Securities proposed to be issued issued, at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder The Investor may exercise elect to purchase any or all of the amount equal to its rights under this Section 12.5 Aggregate Ownership Percentage multiplied by the Subject Securities specified in the Issuance Notice by delivering written notice to the Company (each, an “Exercise Notice”) of its election to purchase such New Subject Securities to the LLP within ten (10) Business Days of following receipt of the Issuance Notice. A delivery of such notice (which notice shall specify , specifying the number (or amount) of New Subject Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) the Investor and shall constitute exercise by the Investor of its rights under this Section and a binding agreement of such Holder the Investor to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Subject Securities specified in such Holder’s noticethe Exercise Notice. If, at the termination of such ten (10) Business Day-Business-Day period, a Class B Holder the Investor shall not have exercised its rights delivered an Exercise Notice to purchase its Preemptive Shares of such New Securitiesthe Company, the Holder Investor shall be deemed to have waived all of its rights under this Section 12.5 Section 3.04 with respect to, and only with respect to, to the purchase of such New Subject Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP Company or the applicable Subsidiary of the Company, as the case may be, shall have 100 sixty (60) days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Subject Securities that the Class B Holders have Investor has not elected not to purchase to the Subscriber at the price and upon terms and conditions that are not less favorable to the LLP Company or such Subsidiary, as the case may be, than those specified in the Issuance Notice, ; provided that, if such issuance is subject to regulatory approval, such 10060-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 ninety (90) days from the date of the Issuance Notice. At If the consummation of such issuance, Company or the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) applicable Subsidiary of the purchase price for such New Securities. If Company, as the LLP case may be, proposes to issue any class of New such Subject Securities after such 10060-day period (or on other terms less favorable to the issuer90-day) period, it shall again comply with the procedures set forth in this Section 12.5Section 3.04.
(d) The Class B Holders hereby acknowledge and agree that At the LLPconsummation of the issuance of such Subject Securities, due the Company shall issue upon the written request of the Investor, certificates representing the Subject Securities to timing constraintsbe purchased by the Investor registered in the name of the Investor, confidentiality considerations, or other reasons, may request that a Class B Holder (against payment by the “Purchasing Member”), acquire New Investor of the purchase price for such Subject Securities in advance of complying accordance with the requirements of this Section 12.5, terms and each Class B Holder consents to such issuance, provided that, conditions as promptly as practicable thereafter, either (i) specified in the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5Issuance Notice.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 Investor shall not apply be entitled to purchase Subject Securities as contemplated by this Section 3.04 in connection with any grant of options, restricted shares, performance units or the issuance of any Subject Securities pursuant to the exercise of share options, restricted shares or performance units granted (whether prior to, on or after the date of this Agreement), pursuant to any Initial Public Offering made pursuant duly approved equity compensation, share purchase or share option plans of the Company in effect from time to an effective registration statement filed under time established for the Securities Actpurpose of retaining and compensating employees, consultants, directors and other service providers of the Company.
Appears in 1 contract
Samples: Investor Rights Agreement (China Jo-Jo Drugstores, Inc.)
Preemptive Rights. (a) The LLP Subject to Section 3.02(e), the Company shall, or shall cause its Subsidiaries, as the case may be, to give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written Investor notice (an “Issuance Notice”) of any proposed issuance by the LLP Company of any New Company Securities (together, “Subject Securities”) at least five (5) ten Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Subject Securities are to be issued, the Person to which the Subject Securities shall be issued (the “Subscriber”) and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New SecuritiesSubject to Section 3.02(e), each Class B Holder the Investor shall be entitled to purchase up to an amount equal to its Preemptive Share of Aggregate Ownership Percentage (determined immediately before giving effect to the New issuance) multiplied by the Subject Securities proposed to be issued issued, at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder The Investor may exercise elect to purchase any or all of the amount equal to its rights under this Section 12.5 Aggregate Ownership Percentage multiplied by the Subject Securities specified in the Issuance Notice by delivering written notice to the Company (each, an “Exercise Notice”) of its election to purchase such New Subject Securities to the LLP within ten (10) Business Days of following receipt of the Issuance Notice. A delivery of such notice (which notice shall specify , specifying the number (or amount) of New Subject Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) the Investor and shall constitute exercise by the Investor of its rights under this Section and a binding agreement of such Holder the Investor to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Subject Securities specified in such Holder’s noticethe Exercise Notice. If, at the termination of such ten (10) Business Dayten-Business-Day period, a Class B Holder the Investor shall not have exercised its rights delivered an Exercise Notice to purchase its Preemptive Shares of such New Securitiesthe Company, the Holder Investor shall be deemed to have waived all of its rights under this Section 12.5 Section 3.02 with respect to, and only with respect to, to the purchase of such New Subject Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP Company or the applicable Subsidiary, as the case may be, shall have 100 ninety days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Subject Securities that the Class B Holders have Investor has not elected not to purchase to the Subscriber at the price and upon terms and conditions that are not less favorable to the LLP Company or such Subsidiary, as the case may be, than those specified in the Issuance Notice, ; provided that, if such issuance is subject to regulatory approval, such 10090-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP Company or the applicable Subsidiary, as the case may be, proposes to issue any class of New such Subject Securities after such 10090-day period or on other terms less favorable to the issuerperiod, it shall again comply with the procedures set forth in this Section 12.5Section 3.02.
(d) The Class B Holders hereby acknowledge and agree that At the LLPconsummation of the issuance of such Subject Securities, due the Company shall issue upon the written request of the Investor, certificates representing the Subject Securities to timing constraintsbe purchased by the Investor registered in the name of the Investor, confidentiality considerations, or other reasons, may request that a Class B Holder (against payment by the “Purchasing Member”), acquire New Investor of the purchase price for such Subject Securities in advance of complying accordance with the requirements of this Section 12.5, terms and each Class B Holder consents to such issuance, provided that, conditions as promptly as practicable thereafter, either (i) specified in the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5Issuance Notice.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 Investor shall not apply be entitled to purchase Subject Securities as contemplated by this Section 3.02 in connection with:
(i) any grant of options, restricted shares, performance units or the issuance of any Subject Securities pursuant to the exercise of share options, restricted shares or performance units granted (whether prior to, on or after the date of this Agreement), pursuant to any Initial Public Offering made pursuant duly approved equity compensation, share purchase or share option plans of the Company in effect from time to time established for the purpose of retaining and compensating employees, consultants, directors and other service providers of the Company, provided that at the time of such issuance, the aggregate of all such issuances of Subject Securities under this subsection in the preceding 12 month-period does not represent an effective registration statement filed amount exceeding 20% of the then total outstanding share capital of the Company;
(ii) Subject Securities issued or issuable in connection with a bona fide business acquisition by the Company or its Subsidiaries with a third party whether by merger, consolidation, sale of assets, sale or exchange of shares or otherwise; provided that at the time of such issuance, the aggregate of all such issuances of Subject Securities under this subsection in the preceding 12 month-period does not represent an amount exceeding 20% of the then total outstanding share capital of the Company;
(iii) Subject Securities Actissued or issuable to Persons with which the Company has bona fide business relations provided that the primary purpose for such issuances is not equity financing; provided further that at the time of such issuance, the aggregate of all such issuances of Subject Securities under this subsection in the preceding 12 month-period does not represent an amount exceeding 1% of the then total outstanding share capital of the Company.
Appears in 1 contract
Preemptive Rights. Prior to a Qualified Financing, each time the Company proposes to sell New Securities, the Company shall (unless the provisions of this Section 7 are waived pursuant to Section 10.12 hereof) also make an offering of such New Securities to the Preferred Holders in accordance with the following provisions:
(a) The LLP Company shall give deliver a notice to each Class B Preferred Holder that is an “accredited investor” (as defined in Rule 501(a) describing the type of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify Securities, stating the number and class of such New Securities to be offered and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any on which it proposes to offer such New Securities, each Class B Holder . Such notice shall be entitled sent to purchase up to its Preemptive Share the addresses set forth in the records of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance NoticeCompany.
(b) A Class B Within fifteen (15) days after delivery of the notice, each Preferred Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder elect to purchase, at the price and on the terms and conditions specified in the Issuance Noticenotice, up to its Pro Rata Portion of such New Securities by delivering written notice of such election to the Company within such fifteen (15) days and stating therein the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten to be purchased.
(10c) Business Day-period, If a Class B Preferred Holder shall not have exercised its rights fails to agree to purchase its Preemptive Shares full Pro Rata Portion within such fifteen (15) day period, the Company will give the Preferred Holders who did so agree (the “Electing Purchasers”) notice of the number of New Securities which were not subscribed for. Such notice may be by telephone if followed by notice via overnight courier with next day delivery or notice via facsimile or electronic mail as provided in Section 10.6. The Electing Purchasers shall have five (5) Business Days from the date of such New Securities, the Holder shall be deemed telephonic notice to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights agree to purchase their respective Preemptive Shares Pro Rata Portion of the unpurchased New Securities. The Company shall continue the process set forth in this Section 7(c) until all of the unpurchased New Securities subject to this Section 7 are purchased or all Electing Purchasers decline to purchase the remaining unpurchased New Securities.
(d) Any shares referred to in the notice that are not elected to be purchased as provided in Section 7(b) and Section 7(c) above may, during the ninety (90) day period thereafter, be offered by the Company to any other Person(s) at a price not less than, and on terms no more favorable to the offeree than, those specified in the Company’s notice. To the extent the Company has not sold the New Securities within such ninety (90) day period, the Company shall not thereafter issue or sell any New Securities without first offering such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing Preferred Holders in the manner provided above.
(e) As used in this Section 7, “Pro Rata Portion” means the ratio that (x) such Electing Memberthe sum of the number of shares of the Company’s Preemptive Share Preferred Stock held by a Stockholder bears to (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares total number of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt shares of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing MemberCompany’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightPreferred Stock then outstanding.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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Preemptive Rights. (a) The LLP From and after the date of this Agreement and until the Expiration Date, each of JEDI and TCW shall give each Class B Holder that is an “accredited investor” have the right (which may be exercised in whole or in part) to purchase its proportionate share of any additional Common Stock issued by the Company, at the same Price (as defined herein) and on the same terms as the Common Stock to be sold by the Company. The number of shares of Common Stock JEDI or TCW shall have a right to acquire pursuant to this Section 4 shall be based upon the proportion of the total outstanding shares of Common Stock which is owned by JEDI or TCW. The Company shall notify JEDI and TCW in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice writing (an “"Issuance Notice”") of any proposed issuance by the LLP of any New Securities at least five (5) Business Days 20 days prior to the proposed issuance dateof any Common Stock. The Each Issuance Notice shall specify set forth the number and class of such New Securities and the price at which such New Securities are shares of Common Stock proposed to be issued and sold, the other material terms Price to be paid for such Common Stock and conditions the proposed date of issuance (the "Issuance Date"). Each of JEDI and TCW shall notify the Company prior to the Issuance Date if it elects to exercise its right to purchase Common Stock and, if it makes such an election, shall make payment in cash for the Common Stock by certified check or wire transfer on or prior to the later of the Issuance Date or the actual date of issuance. If any proposed purchaser will purchase any Upon receipt of such New Securitiespayment by the Company, each Class B Holder JEDI or TCW, as the case may be shall be entitled deemed for all purposes to purchase up to its Preemptive Share be the owner of such shares of Common Stock, and the New Securities proposed Company shall cause certificates representing such Common Stock to be issued at the price and to JEDI or TCW on the other terms and conditions specified such date of issuance. The Company may sell Common Stock described in an Issuance Notice, during a period not to exceed 30 days after the Issuance NoticeDate. Thereafter, any issuance by the Company must again be preceded by an offer to JEDI and TCW hereunder.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to As used herein, the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice ("Price" at which notice shall specify the number (or amount) of New Securities Common Stock is to be purchased issued by a Class B Holderthe Company shall be (i) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Noticecase of cash consideration paid for such Common Stock, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price cash consideration and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) in the Purchasing Member offers case of noncash consideration, the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) fair market value of New Securities that such Holder would have been offered consideration, as determined in good faith by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance Board of New Securities, nor shall there be any liability on the part Directors of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuanceCompany.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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Preemptive Rights. (a) The LLP Commencing on July 1, 2010 and continuing until the later of the date of the termination of the Credit Agreement or June 30, 2013 (the “Preemptive Rights Period”), subject to the terms and conditions of this Section 4.8 and applicable securities laws, the Investor shall give each Class B Holder have a preemptive right to purchase an amount of the Equity Securities, that is the Company may, from time to time, propose to sell and issue (except those Equity Securities issued pursuant to an “accredited investor” Approved Stock Plan and pursuant to derivative securities outstanding on the Second Amendment Effective Date as reflected in Section 2.2 of the Disclosure Letter (as defined in Rule 501(a) the Purchase Agreement)), equal to its pro rata share of Regulation D promulgated under the then outstanding Equity Securities. Notwithstanding the foregoing, this preemptive right shall be limited as may be necessary to comply with applicable shareholder approval rules of the NYSE Alternext U.S. or any other national securities exchange or national market system on which the Common Stock may be listed; provided, however, the Company shall use its best reasonable efforts to obtain shareholder approval if required to comply with such shareholder approval rules for such purchase of Equity Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance NoticeInvestor.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering If the Company proposes to issue any Equity Securities during the Preemptive Rights Period, it shall give the Investor written notice of its election to purchase such New Securities intention, describing the Equity Securities, the price and the terms and conditions thereof and referring to the LLP within ten Investor’s preemptive rights hereunder. The Investor shall have fifteen (1015) Business Days of receipt of business days from the Issuance Notice. A delivery receiving of such notice (which notice shall specify to agree to purchase its pro rata share of the number (or amount) of New Equity Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at for the price and on upon the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal giving written notice to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) Company and stating therein the sum quantity of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Equity Securities to be purchased by purchased, provided such Electing Member) by an Electing Member shall constitute a binding agreement purchase is consistent with the limitations of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right4.8(a).
(c) The LLP Company shall have 100 ninety (90) days from thereafter to sell the date Equity Securities in respect of which the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected Investor’s preemptive rights applied, at a price not to purchase at the price lower and upon general terms and conditions that are not less materially more favorable to the LLP purchasers thereof than those specified in the Issuance Notice, provided that, if such issuance is subject Company’s notice to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights Investor pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party4.8(b), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes Company has not sold such Equity Securities within ninety (90) days of the notice provided pursuant to Section 4.8(b), the Company shall not thereafter issue or sell any class of New Securities after such 100-day period or on other terms less favorable to the issuerEquity Securities, it shall again comply without first complying with the procedures set forth in this Section 12.54.8.
(dg) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part 4 of the LLP to Investor Rights Agreement is amended by adding Section 4.9 in the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.form as follows:
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Preemptive Rights. (a) The LLP Company, Intermediate Holdings or Jostens, as the case may be, shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) Syndicate Stockholder written notice (an “Issuance Notice”) of any proposed issuance by the LLP Company, Intermediate Holdings or Jostens, as the case may be, of any New Company Securities to any DLJMB Funds or their successors at least five ten (510) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Company Securities and the price at which such New Company Securities are to be issued to any DLJMB Fund or DLJMB Funds and the other material terms and conditions of the issuance. If Subject to Section 9.04(e) below, if any proposed purchaser DLJMB Fund or DLJMB Funds will purchase any such New SecuritiesCompany Securities from the Company, Intermediate Holdings or Jostens, as the case may be, each Class B Holder Syndicate Stockholder shall be entitled to purchase up to its Preemptive such Syndicate Stockholder’s Pro Rata Share of the New Company Securities proposed to be issued to the DLJMB Funds, at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder Each Syndicate Stockholder may exercise its rights under this Section 12.5 9.04 by delivering notice of its election to purchase such New Company Securities to the LLP Company, Intermediate Holdings or Jostens, as the case may be, and the DLJMB Funds within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Company Securities to be purchased by a Class B Holderthe Syndicate Stockholder submitting such notice) by a Class B Holder (an “Electing Member”) such Syndicate Stockholder shall constitute a binding agreement of such Holder Syndicate Stockholder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Company Securities specified in such HolderSyndicate Stockholder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder any Syndicate Stockholder shall not have exercised its rights to purchase its Preemptive Shares any of such New Syndicate Stockholder’s Pro Rata Share of such Company Securities, the Holder such Syndicate Stockholder shall be deemed to have waived all of its rights under this Section 12.5 9.04 with respect to, and only with respect to, the purchase of such New Company Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) If any Syndicate Stockholder declines to exercise its preemptive rights under this Section 9.04 or elects to exercise such rights with respect to less than such Syndicate Stockholder’s Pro Rata Share (the “Excess Shares”), the DLJMB Funds and any participating Syndicate Stockholder electing to exercise its rights with respect to its full Pro Rata Share (a “Fully Participating Syndicate Stockholder”) shall be entitled to purchase from the Company, Intermediate Holdings or Jostens, as the case may be, an additional number of Company Securities equal to the product of (i) the Excess Shares and (ii) a fraction, the numerator of which is the Aggregate Ownership of that class of Company Securities of the DLJMB Funds or the Fully Participating Syndicate Stockholder, as the case may be, and the denominator of which is equal to the sum of the Aggregate Ownership of that class of Company Securities of the DLJMB Funds and all Fully Participating Syndicate Stockholders.
(d) The LLP Company, Intermediate Holdings or Jostens, as the case may be, shall have 100 ninety (90) days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Company Securities that the Class B Holders DLJMB Funds and each Syndicate Stockholder have elected not to purchase at the price and upon terms and conditions that are not materially less favorable to the LLP Company, Intermediate Holdings or Jostens, as the case may be, than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 10090-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP Company, Intermediate Holdings or Jostens, as the case may be, shall issue certificates representing the New Company Securities to be purchased by the Class B Holders should they exercise their each Syndicate Stockholder exercising preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities 9.04 registered in the name of each such Holder (and to any third party)Syndicate Stockholder, against payment by such Holder (and to any third party) Syndicate Stockholder of the purchase price for such New Company Securities. If the LLP Company, Intermediate Holdings or Jostens, as the case may be, proposes to issue any class of New Company Securities after such 10090-day period or on other terms materially less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.59.04.
(e) The LLP None of the Company, Intermediate Holdings or Jostens shall not be under any obligation to consummate any proposed issuance of New Company Securities, nor shall there be any liability on the part of the LLP Company, Intermediate Holdings or Jostens to the Class B Holders any Syndicate Stockholder if the LLP has not consummated any proposed issuance of New Company Securities pursuant to this Section 12.5 9.04 is not consummated for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding The Company, Intermediate Holdings or Jostens may offer and sell Company Securities to the foregoingDLJMB Funds subject to the preemptive rights under this Section 9.04 without first offering such Company Securities to the Syndicate Stockholders or complying with the procedures of this Section 9.04, so long as the Syndicate Stockholders receive prompt written notice of such sales and thereafter are given the opportunity to purchase their respective Pro Rata Shares of such Company Securities within forty-five (45) days after the close of such sale and in any event no later than ten (10) Business Days from receipt of the notice referred to herein on substantially the same terms and conditions as such sale to the DLJMB Funds, however, the provisions contained in this Section 12.5 price of such Company Securities shall not apply be identical to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Actprice paid by the DLJMB Funds.
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Samples: Stock Purchase and Stockholders’ Agreement (Jostens Holding Corp)
Preemptive Rights. (a) The LLP Company hereby grants to Montpelier the right, subject to the Applicable Requirements, to purchase (or to designate any controlled Affiliate of Montpelier to purchase) the Montpelier Pro Rata Portion (or any portion thereof) of any Equity Securities of the Company (collectively, the “New Securities”) that the Company may from time to time propose to issue, other than pursuant to any Excluded Transaction.
(b) The Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five described in Section 5.01(a) (5a “Proposed Issuance”) Business Days to Montpelier no later than ten days prior to the proposed issuance datedate of such Proposed Issuance (or, if such notice period is not reasonably practicable under the circumstances, such prior written notice as is reasonably practicable, but, in no event, less than five days prior to the date of such Proposed Issuance). The Issuance Notice shall specify set forth the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New SecuritiesProposed Issuance, each Class B Holder shall be entitled to purchase up to its Preemptive Share including
(i) the number and description of the New Securities proposed to be issued at and the percentage of outstanding Common Shares or other Equity Securities of the Company such issuance would represent; and
(ii) the cash purchase price and per New Security or that the issuance will be based on the other terms and conditions specified in public trading price of the Issuance Noticeapplicable Equity Securities of the Company.
(bc) A Class B Holder may exercise its rights under this Section 12.5 Montpelier shall for a period of eight days (or such shorter period if the Issuance Notice was sent by delivering notice of its election to purchase such New Securities the Company with less than ten days prior notice, but, in no event, less than three days prior to the LLP within ten (10date of such Proposed Issuance) Business Days of following the receipt of the an Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities Notice (the “Non-Exercising MembersExercise Period”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number (or amount to designate any controlled Affiliate of such Montpelier to purchase) the Montpelier Pro Rata Portion of the New Securities Securities, at an all-cash purchase price per New Security (the “Per New Security Offering Price”) equal to the percentage obtained cash purchase price per New Security paid by dividing (x) such Electing Member’s Preemptive Share by (y) other purchasers pursuant to the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”)Proposed Issuance. A Class B Holder Montpelier may exercise its Additional Purchase Rights under this Section 12.5 election by delivering a written notice to the Company during the Exercise Period, which must indicate the number of its election New Securities that Montpelier desires to purchase such additional New Securities (or that its controlled Affiliate desires to purchase) and may not be conditioned in any manner not also available to other purchasers pursuant to the LLP within five (5) Business Days of receipt of the Issuance NoticeProposed Issuance. A delivery of such notice (which notice Montpelier, if so exercising its election, shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member entitled and obligated to purchase, at or to cause such other Persons it may have designated in accordance with this Section 5.01 to purchase, that number of the price and New Securities so offered to Montpelier specified in Montpelier’s notice on the terms and conditions specified set forth in the Issuance Notice; provided that, in no event shall the number (actual terms or amount) conditions of additional the New Securities (including the price) be more favorable to other purchasers than the terms or conditions specified in such Electing MemberMontpelier’s noticeIssuance Notice. If, at Montpelier’s failure to exercise its right to purchase its allotment of the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, New Securities during the Electing Member Exercise Period shall be deemed to have waived all a waiver by Montpelier of its rights under this Section 12.5 5.01 with respect toto such Proposed Issuance, and only but not with respect toto any future issuance. The closing of any purchase by Montpelier (or any of its designees) shall be consummated concurrently with the consummation of the Proposed Issuance; provided, however, in the event that either the Company or Montpelier has been advised by their respective outside counsel that the issuance of Montpelier’s Pro Rata Portion of the New Securities in full to Montpelier (or any of its designees) pursuant to this Section 5.01 would require the approval the Company’s shareholders under the Applicable Requirements or the approval or consent of any Competent Regulatory Authority, (i) the Company shall use its reasonable best efforts to promptly obtain any such Additional Purchase Right.
approval or consent and (cii) The LLP the closing of the Proposed Issuance shall not occur until such approvals or consents have 100 been obtained; provided further that, if the Company has used its reasonable best efforts to obtain any required approvals or consents and such required approvals or consents have not been obtained within 180 days from the date of the Issuance Notice to consummate Notice, the proposed issuance of any or all excess amount of such New Securities to the extent otherwise triggering such approvals or consents will be excluded from the total number of New Securities that the Class B Holders Montpelier would otherwise have elected not a right to purchase at pursuant to this Section 5.01 (which exclusion may result in Montpelier not having the price and upon right to purchase any New Securities pursuant to this Section 5.01).
(d) If Montpelier fails to exercise its right to purchase its allotment of the New Securities during the Exercise Period, the Company shall be free to complete the Proposed Issuance on terms and conditions that are not no less favorable to the LLP Company (including with respect to consideration) than those specified set forth in the Issuance Notice, ; provided that, if that such issuance Proposed Issuance is closed within 75 days after the expiration of the Exercise Period (subject to regulatory approval, the extension of such 10075-day period shall be extended until for a reasonable time not to exceed an additional 75 days to the expiration extent reasonably necessary to obtain approvals of five (5) Business Days after all any Competent Regulatory Authority). In the event the Company has not completed such approvals have been received, but in no event later than 120 days from the date of the Proposed Issuance Notice. At the consummation of within such issuancetime period, the LLP Company shall not thereafter issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to or sell any third party) and register such New Securities without first again offering such securities to Montpelier in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply accordance with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.55.01.
(e) The LLP shall not be under any obligation to consummate any proposed Upon the issuance of any New Securities in accordance with this Section 5.01, the Company shall deliver to Montpelier (or any of its designees) the New Securities in book-entry form, which New Securities shall be duly authorized and, when issued and delivered against payment therefor, will be validly issued and fully paid and non-assessable and will be free and clear of all liens, pledges, charges, encumbrances or security interests of any kind or nature. Montpelier shall deliver or cause to be delivered to the Company the aggregate Per New Security Offering Price for the New Securities purchased by it (or its designees) by wire transfer in immediately available U.S. federal funds to the account designated by the Company in writing for such purpose. In the event that a Proposed Issuance shall be terminated or abandoned by the Company without the issuance of any New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities then Montpelier’s rights pursuant to this Section 12.5 for whatever reason, regardless of whether it 5.01 shall have delivered an Issuance Notice in respect of also terminate as to such proposed issuanceProposed Issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Shareholder and Registration Rights Agreement (Blue Capital Reinsurance Holdings Ltd.)
Preemptive Rights. (a) The LLP shall give Company hereby grants to each Class B Holder that is an of the Members (each, a “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance NoticePreemptive Rightholder”) of any proposed issuance by the LLP a right to purchase a portion of any New Securities at least five (5) Business Days prior which the Company may, from time to time, propose to issue and sell on the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuanceset forth in this Section 8.4. If any proposed purchaser will purchase any such New Securities, Such right shall permit each Class B Holder shall be entitled Preemptive Rightholder to purchase up to its Preemptive Share (and including) a portion of the New Securities proposed to be issued at equal to such Preemptive Rightholder’s Percentage Interest (determined immediately prior to such issuance and sale of New Securities) (such Preemptive Rightholder’s “Proportionate Share”). The right granted under this Section 8.4(a) shall terminate if unexercised within twenty (20) days after receipt of the New Issue Notice described in Section 8.4(b).
(b) Except as otherwise provided herein, in the event that the Company proposes to issue New Securities, it shall give each Preemptive Rightholder written notice of its intention (the “New Issue Notice”), describing the number and type of New Securities it intends to issue, the purchase price therefor, and on the other terms and conditions specified in upon which the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice Company or any of its election Subsidiaries, as applicable, proposes to issue the same. Each Preemptive Rightholder shall have twenty (20) days from the date that the New Issue Notice is received by it to determine whether to purchase all or any portion of its Proportionate Share of such New Securities to for the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the purchase price and on upon the terms and conditions specified in the Issuance Notice, New Issue Notice by giving written notice to the number (or amount) Company stating therein the quantity of New Securities specified in such Holderto be purchased. A Preemptive Rightholder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights election to purchase New Securities shall be binding and irrevocable.
(c) Notwithstanding anything to the contrary contained herein, the rights of Preemptive Rightholders under this Section 8.4 shall be deemed satisfied with respect to any issuance of New Securities to:
(i) any Person that is not a Member or an Affiliate of a Member if within thirty (30) days following the sale of any New Securities by the Company or any of its Subsidiaries, as applicable, to any Person that is not a Member or an Affiliate of a Member, the Company or any of its Subsidiaries, as applicable, offers to sell, and if accepted, sells to each Preemptive Shares of Rightholder, on the same terms as such Person purchased such New Securities, the Holder shall number of New Securities that would result in each such Preemptive Rightholder owning the same portion of the New Securities that such Preemptive Rightholder would have been entitled to purchase pursuant to Section 8.4(a); or
(ii) any Member or an Affiliate of a Member if (A) there is a risk that the failure to provide additional capital to the Company could reasonably be deemed likely to have waived all result in material harm to the Company, (B) the Company promptly provides written notice to the Preemptive Rightholders of its rights under this Section 12.5 with respect tosuch issuance and (C) within thirty (30) days following the sale of any New Securities by the Company to such Member or Affiliate, and only with respect tosuch Member or Affiliate offers to sell on the same terms as such Member or Affiliate purchased such New Securities, up to the number of such New Securities that is in excess of such Member’s Proportionate Share immediately prior to the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights Securities to purchase their respective each Preemptive Shares Rightholder who is not such Member or an Affiliate of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right in an amount equal to purchase 100% of such Electing MemberPreemptive Rightholder’s Preemptive Proportionate Share of such New Securitiesexcess.
(d) Upon the consummation of any issuance pursuant to this Section 8.4, notice each electing Preemptive Rightholder shall deliver payment in full by wire transfer of immediately available funds of the aggregate number or amount of purchase price for the New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s noticePreemptive Rightholder. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 Simultaneously with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) all of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents parties to such issuance, provided that, purchase and sale shall execute such additional documents as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto are otherwise necessary or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5appropriate.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Preemptive Rights. (a) The LLP shall give If the Company proposes to issue any of its Units or other securities or other rights convertible into or containing options or rights to acquire any Units or other securities (collectively, the “Offered Units”) to any Person (the “Proposed Purchaser”), each Class B Holder that Member, so long as such Member is an “accredited investorAccredited Investor” (as such term is defined in Rule 501(a) of Regulation D the regulations promulgated under the Securities Act), shall have the right to purchase its Voting Interest of the Offered Units as provided below in Section 3.5(b), provided that such Member delivers such investor eligibility certificates and documentation as reasonably requested by the Board.
(b) written The Company shall give each Member at least 10 Business Days’ prior notice (an “Issuance Notice”) of any proposed issuance by of Offered Units (the LLP of any New Securities at least five (5) Business Days prior to “First Notice”), which notice shall set forth in reasonable detail the proposed issuance date. The Issuance Notice shall specify terms and conditions thereof (including a range of terms and conditions if the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuanceissuance have not been finalized) and shall offer to each Member the opportunity to purchase its Voting Interest of the Offered Units at the same price, and on the same terms and conditions, as the Offered Units are proposed to be issued by the Company. If, following the giving of the First Notice, the terms of the proposed issuance materially change, the Company shall furnish a supplemental notice (a “Supplemental Notice”) describing the revised terms; provided, the Supplemental Notice shall not restart the foregoing 10-Business Day period, but the Company shall give each Member a reasonable period of time (not to exceed 20 Business Days after the initial 10-Business Day period) (such 10-Business Day period, as extended if applicable, being referred to as the “Election Period”) to consider the revised terms. Amended and Restated Limited Liability Company Agreement of AleAnna Energy, LLC 6
(c) If any proposed purchaser will purchase any Member wishes to exercise its preemptive rights, it must do so by delivering written notice to the Company within the Election Period. Each Member’s notice shall state the dollar amount of Offered Units such New Securities, Member (each Class B Holder shall be entitled a “Requesting Investor”) would like to purchase up to its Preemptive Share a maximum amount equal to such holder’s Voting Interest of the New Securities proposed total offering amount plus the additional dollar amount of Offered Units, if any, that such Requesting Investor would like to purchase in excess of its Voting Interest (the “Over-Allotment Amount”), if other Members do not elect to purchase their full Voting Interest of the Offered Units. The rights of each Requesting Investor to purchase a dollar amount of Offered Units in excess of each such Requesting Investor’s Voting Interest of the Offered Units shall be issued at the price and based on the other terms and conditions specified in the Issuance NoticeRequesting Investors’ relative Voting Interest.
(bd) A Class B Holder may exercise its rights under this Section 12.5 If all of the Offered Units are not fully subscribed for by delivering notice of its election to purchase such New Securities the Members pursuant to the LLP within ten (10) Business Days of receipt foregoing, then the Company shall have the right to issue and sell the unsubscribed for portion of the Issuance Notice. A delivery Offered Units to the Proposed Purchaser at any time during the 90 days following the termination of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and Election Period on the terms and conditions specified set forth in the Issuance First Notice, as modified by a Supplemental Notice, if applicable. In connection with the number (issuance and sale of Units subscribed for by the Members pursuant to the preemptive rights provisions of this Section 3.5, the Board may, in its reasonable discretion, impose such other reasonable and customary terms and procedures such as setting a closing date and requiring customary closing deliveries such as accredited investor certificates in connection with any preemptive rights offering. If any Member refuses to purchase Offered Units for which it subscribed pursuant to the exercise of preemptive rights granted thereto under this Section 3.5, in addition to any other rights the Company may be permitted to enforce at Law or amount) of New Securities specified in equity, such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder Member and any Permitted Transferee thereof shall not have exercised its irrevocably forfeited any future rights to purchase its Preemptive Shares of such New Securities, Offered Units pursuant to Section 3.5(a) unless the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightBoard determines otherwise.
(ce) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable Notwithstanding anything herein to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuancecontrary, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 3.5 shall not apply to any Initial Public Offering made the pro rata issuance of Units to Members pursuant to an effective registration statement filed under the Securities Acta Unit split or a pro rata distribution of Units.
Appears in 1 contract
Samples: Limited Liability Company Agreement (AleAnna Energy, LLC)
Preemptive Rights. (a) The LLP If the Company proposes to issue, grant or sell equity securities or Rights, the Company shall first give to the Purchaser and any transferee of Shares from the Purchaser (each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Acta "Securityholder") written notice (an “Issuance Notice”) of any proposed issuance by the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and setting forth in reasonable detail the price at and other terms on which such New Securities equity securities or Rights are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued or sold, the terms of any such Rights and the amount thereof proposed to be issued, granted or sold. Each Securityholder shall thereafter have the preemptive right, exercisable by written notice to the Company no later than fifteen (15) days after the Company's notice is given, to purchase the number of such equity securities or Rights set forth in the Securityholder's notice (but in no event more than the Securityholder's Proportionate Share (as defined below) thereof, as of the date of the Company's notice), at the price and on the other terms and conditions set forth in the Company's notice. Any notice by a Securityholder exercising the right to purchase equity securities or Rights pursuant to this Section 5.2 shall constitute an irrevocable commitment to purchase from the Company the equity securities or Rights specified in such notice, subject to the Issuance Noticemaximum set forth in the preceding sentence. If all the Securityholders exercise their preemptive rights set forth in this Section 5.2(a) to the full extent of their Proportionate Share or if for any other reason the Company shall not issue, grant or sell equity securities or Rights to persons other than Securityholders, then the closing of the purchase of equity securities or Rights by Securityholders shall take place on such date, no less than ten (10) and no more than thirty (30) days after the expiration of the 15-day period referred to above, as the Company may select, and the Company shall notify the Securityholders of such closing at least seven (7) days prior thereto. If all persons entitled thereto do not exercise their preemptive rights to the full extent of their Proportionate Share and, as contemplated by Section 5.2(b), the Company shall issue, grant or sell equity securities or Rights to persons other than Securityholders, then the closing of the purchase of equity securities shall take place at the same time as the closing of such issuance, grant or sale.
(b) A Class B Holder may If all persons entitled thereto do not exercise its their preemptive rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days full extent of receipt their Proportionate Share, the Company shall use its good faith and commercially reasonable efforts to issue, grant or sell the remaining subject equity securities or Rights on the terms set forth in its notice to Securityholders, unless the Company is advised by its financial advisors that the remaining number or amount is too small to be reasonably sold. From the expiration of the Issuance Notice. A delivery 15-day period first referred to in Section 5.2(a) and for a period of 90 days thereafter, the Company may offer, issue, grant and sell to any person or entity equity securities or Rights having the terms set forth in the Company's notice relating to such equity securities or Rights at a price and on other terms no less favorable to the Company, and including no less cash, than those set forth in such notice (which without deduction for reasonable underwriting, sales agency and similar fees payable in connection therewith); provided, however, that the Company may not issue, grant or sell equity securities or Rights in an amount greater than the amount set forth in such notice shall specify minus the number (amount purchased or amount) of New Securities committed to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightSecurityholders.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.55.2 shall terminate upon successful consummation of a firm underwritten initial public offering of Common Stock by the Company pursuant to an effective registration statement under the Securities Act which results in net proceeds to the corporation of at least $30 million and the value of the corporation immediately prior to such offering is at least $150 million.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements provisions of this Section 12.5, and each Class B Holder consents 5.2 shall not apply to such issuance, provided that, as promptly as practicable thereafter, either the following issuances of securities: (i) pursuant to an approved employee stock option plan, stock purchase plan, or similar benefit program or agreement, where the LLP complies with primary purpose is not to raise additional equity capital for the requirements of this Section 12.5 with respect thereto or Company, (ii) as direct consideration for the Purchasing Member offers acquisition by the other Class B Holders Company of another business entity or the merger of any business entity with or into the Company, (iii) in connection with a stock split or dividend or a recapitalization or reorganization of the Company, (iv) upon the exercise of warrants or options, or upon the conversion of convertible securities, outstanding on the date hereof or as to which Securityholders have been previously offered the right to acquire from participate as contemplated hereby or (v) securities issued in a transaction registered under the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5Act.
(e) The LLP For purposes of this Agreement, the following terms shall not be under have the corresponding meanings set forth herein: "Proportionate Share" means, with respect to each Securityholder, a fraction the numerator of which is the total number of shares of Common Stock owned and the number of shares of Common Stock issuable upon exercise of Rights owned by such Securityholder, and the denominator of which is the total number of shares of Common Stock outstanding plus the number of shares of Common Stock issuable upon exercise of all Rights outstanding. "Right" means any obligation option, warrant, security, right or other instrument convertible into or exchangeable or exercisable for, or otherwise giving the holder thereof the right to consummate acquire, directly or indirectly, from the Company any proposed issuance Common Stock or any other such option, warrant, security, right or instrument, including any instrument issued by the Company or any subsidiary thereof the value of New Securities, nor shall there be any liability on which is measured by reference to the part value of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuanceCommon Stock.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Series C Convertible Preferred Stock Purchase Agreement (Odimo INC)
Preemptive Rights. (a) The LLP Subject to Section 4.03(e), the Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP Company of any New Company Securities (the “Subject Shares”) to each Shareholder (a “Preemptive Rights Holder”) at least five twenty (520) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class type of such New Company Securities and to be issued, the price per share at which such New Securities Subject Shares are to be issued and the any other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New SecuritiesSubject to Section 4.03(e), each Class B Preemptive Rights Holder shall be entitled to purchase up to its a percentage of such Subject Shares equal to such Preemptive Share of Rights Holder’s Aggregate Ownership Percentage (determined immediately before giving effect to the New Securities proposed to be issued issuance), at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Each Preemptive Rights Holder may exercise elect to purchase any or all of its rights under this Section 12.5 Aggregate Ownership Percentage of the Subject Shares specified in the Issuance Notice by delivering written notice to the Company (each, an “Exercise Notice”) of its election to purchase such New Securities to the LLP Subject Shares within ten fifteen (1015) Business Days of following receipt of the Issuance Notice. A delivery of such notice (which notice shall specify , specifying the number (or amount) of New Securities Subject Shares to be purchased by a Class B Holder) by a Class B such Preemptive Rights Holder (an “Electing Member”) and shall constitute exercise by such Preemptive Rights Holder of its rights under this Section 4.03 and a binding agreement of such Preemptive Rights Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities Subject Shares specified in such Holder’s noticethe Exercise Notice. If, at the termination expiration of such ten fifteen (1015) Business Day-Day period, a Class B any Preemptive Rights Holder shall has not have exercised its rights delivered an Exercise Notice to purchase its the Company, such Preemptive Shares of such New Securities, the Rights Holder shall be deemed to have waived all of its rights under this Section 12.5 4.03 to purchase its Aggregate Ownership Percentage of such Subject Shares. For the avoidance of doubt, each Preemptive Rights Holder that fully exercises its preemptive rights with respect to, and only to any issuance of Subject Shares will not have any oversubscription right with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective any Subject Shares that are not subscribed by other Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightHolders.
(c) The LLP Company shall have 100 ninety (90) days from the date of the Issuance Notice (the “Issuance Period”) to consummate the proposed issuance of any or all of such New Securities Subject Shares that the Class B Preemptive Rights Holders have not elected not to purchase at the same or higher price and upon terms and conditions that are not in the aggregate less favorable to the LLP Company than those specified in the Issuance Notice, ; provided that, if such issuance is subject to regulatory approval, such 100-day period the Issuance Period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 one hundred twenty (120) days from the date of the Issuance Notice. At ; provided further, that such Person to which the consummation of such issuance, the LLP Company shall issue such Subject Shares shall have executed and delivered a Deed of Adherence to the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New SecuritiesCompany. If the LLP Company proposes to issue any class of New Securities such Subject Shares after such 100-day period the Issuance Period (as may be extended for obtaining regulatory approval) or on a different price or on other terms that are in the aggregate less favorable to the issuerCompany, it shall again comply with the procedures set forth in this Section 12.54.03.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying In connection with the requirements consummation of this Section 12.5the issuance of such Subject Shares, and the Company shall deliver to each Class B Preemptive Rights Holder consents a copy of its register of members updated to reflect such issuance, provided that, as promptly as practicable thereafter, either (i) against payment by such Preemptive Rights Holder of the LLP complies purchase price for such Subject Shares in accordance with the requirements of this Section 12.5 with respect thereto or (ii) terms and conditions as specified in the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5Issuance Notice.
(e) Notwithstanding the foregoing, no Preemptive Rights Holder shall be entitled to purchase Subject Shares as contemplated by this Section 4.03 in connection with issuances of Subject Shares (i) to management, employees or consultants of the Group Companies pursuant to any equity incentive plan established for the benefit of such Persons (the “Employee Plans”) that has been duly approved in accordance with this Deed and the Articles, including upon the exercise of employee share options granted pursuant to the Management Equity Grant or any other Employee Plans, (ii) in connection with any share dividend, share split or subdivision, reverse share split or consolidation, reclassification or similar changes in the capital structure of the Company that is effected on a pro rata basis with respect to all outstanding Shares and is duly approved in accordance with this Deed and the Articles, (iii) in connection with any direct or indirect merger, acquisition or similar transaction (including the terms of the proposed issuance in connection therewith) that has been duly approved in accordance with Section 2.08(a)(ii) including by each Investor Director or in accordance with Section 2.08(b)(ii) by each Major Shareholder, as applicable, and the Articles, (iv) in connection with any IPO that is duly approved in accordance with this Deed and the Articles, (v) pursuant to the Subscription Agreement, (vi) upon the conversion, exchange or exercise of any equity or debt securities issued by the Company in compliance with this Deed and the Articles, or (vii) to any third party lenders as “equity kickers” in connection with a loan transaction pursuant to any agreement or arrangement (including the terms of the proposed issuance) that has been duly approved by each Major Shareholder in accordance with Section 2.08(b)(vi) and the Articles.
(f) The LLP Company shall not be under any obligation obligated to consummate any proposed issuance of New SecuritiesSubject Shares, nor shall there be liable to any liability on the part of the LLP to the Class B Holders Preemptive Rights Holder if the LLP Company has not consummated any proposed issuance of New Securities Subject Shares pursuant to this Section 12.5 4.03 for whatever reason, regardless of whether it shall have delivered an Issuance Notice or received any Exercise Notices in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Series a Preferred Share Subscription Agreement (GDS Holdings LTD)
Preemptive Rights. (a) The LLP Company shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written Existing Shareholder notice (an “Issuance Notice”"ISSUANCE NOTICE") of any proposed issuance by the LLP Company of any New Company Securities to any DLJ Funds prior to the Initial Public Offering at least five (5) 15 Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Company Securities are to be issued and the other material terms and conditions of the issuance. If Subject to Section 4.04(e) below, if any proposed purchaser DLJ Funds will purchase any such New SecuritiesCompany Securities from the Company, each Class B Holder Existing Shareholder shall be entitled to purchase up to its Preemptive such Shareholder's Pro Rata Share of the New Company Securities proposed to be issued issued, at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder An Existing Shareholder may exercise its rights under this Section 12.5 4.04 by delivering notice of its election to purchase such New Company Securities to the LLP Company, the DLJ Funds and to each other Existing Shareholder within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Company Securities to be purchased by a Class B Holderthe Shareholder submitting such notice) by a Class B Holder (an “Electing Member”) such Existing Shareholder shall constitute a binding agreement of such Holder Shareholder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number of shares (or amount) of New Company Securities specified in such Holder’s Shareholder's notice. If, at the termination of such ten (10) ten-Business Day-period, a Class B Holder any Existing Shareholder shall not have exercised its rights to purchase its Preemptive Shares any of such New Shareholder's Pro Rata Share of such Company Securities, the Holder such Existing Shareholder shall be deemed to have waived all of its rights under this Section 12.5 4.04 with respect to, and only with respect to, the purchase of such New Company Securities. .
(c) If less than 100% of the Class B Holders shall have exercised their rights any Existing Shareholder declines to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights preemptive rights under this Section 12.5 by delivering notice of its election 4.04 or elects to exercise such rights with respect to less than such Existing Shareholder's Pro Rata Share, the DLJ Funds shall be entitled to purchase such additional New Securities to from the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify Company the number (or amount) of Company Securities constituting the Pro Rata Share with respect to which such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member Existing Shareholder shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Rightpreemptive rights.
(cd) The LLP Company shall have 100 90 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Company Securities that the Class B Holders DLJ Funds and the Existing Shareholders have elected not to purchase at the price and upon terms and conditions that are not materially less favorable to the LLP Company than those specified in the Issuance Notice, provided PROVIDED that, if such issuance is subject to regulatory approval, such 100-90- day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP Company shall issue certificates representing the New Company Securities to be purchased by the Class B Holders should they exercise their each Shareholder exercising preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities 4.04 registered in the name of each such Holder (and to any third party)Shareholder, against payment by such Holder (and to any third party) Shareholder of the purchase price for such New Company Securities. If the LLP Company proposes to issue any class of New Company Securities after such 10090-day period or on other terms less favorable to the issuerperiod, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.54.04.
(e) Notwithstanding the foregoing, no Shareholder shall be entitled to purchase Company Securities as contemplated by this Section 4.04 in connection with issuances of Company Securities (i) in connection with any bona fide, arm's-length restructuring of outstanding debt of the Company or any Subsidiary, or (ii) in connection with any bona fide, arm's-length direct or indirect merger, acquisition or similar transaction. The LLP Company shall not be under any obligation to consummate any proposed issuance of New Company Securities, nor shall there be any liability on the part of the LLP Company to the Class B Holders any Shareholder if the LLP Company has not consummated any proposed issuance of New Company Securities pursuant to this Section 12.5 4.04 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the The provisions contained in of this Section 12.5 4.04 shall not apply to any terminate upon the consummation of the Initial Public Offering made pursuant to an effective registration statement filed under the Securities ActOffering.
Appears in 1 contract
Samples: Shareholder Agreement (Advanstar Communications Inc)
Preemptive Rights. (aa.) The LLP Following the Closing, the Purchaser shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under have the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP of right to purchase any New Securities at that the Corporation or any Corporation Subsidiary may from time to time propose to issue or sell to any Person.
(b.) At least five thirty (530) Business Days prior to any issuance or sale referred to in Section 4.4(a), the Corporation shall notify in writing the Purchaser of such proposed issuance or sale (the “Preemptive Right Notice”). The Preemptive Right Notice shall describe the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities or sale and the price at which such New Securities are to be issued and the other material terms and conditions thereof, including: (i) the number of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued and the percentage of the Corporation's or such Corporation Subsidiary’s outstanding Common Stock, as applicable, on a fully diluted basis, that such issuance would represent; (ii) the proposed issuance date, which shall be at least thirty (30) Business Days from the date of the Preemptive Right Notice; (iii) the proposed purchase price per share and (iv) a summary of the material terms of such New Securities. The Purchaser shall for a period of twenty (20) Business Days following the receipt of a Preemptive Right Notice (the “Exercise Period”) have the right to elect irrevocably to purchase, at the purchase price and on set forth in the other Preemptive Right Notice, all or any portion of such New Securities, by delivering a written notice to the Corporation.
(c.) Subject to the Certificate of Designation, the Corporation shall be free to complete the proposed issuance or sale of New Securities described in the Preemptive Right Notice with respect to any New Securities not elected to be purchased pursuant to Section 4.4(b) above in accordance with the terms and conditions specified set forth in the Issuance Notice.
Preemptive Right Notice (b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to except that the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) amount of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (issued or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased sold by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (xCorporation may be reduced) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if so long as such issuance or sale is subject to regulatory approval, such 100-day period shall be extended until the expiration of five closed within sixty (560) Business Days after all such approvals have been received, but in no event later than 120 days from the date expiration of the Issuance Notice. At Exercise Period (subject to the consummation extension of such issuance, sixty (60) Business Day period for a reasonable time not to exceed thirty (30) days to the LLP shall issue extent reasonably necessary to obtain necessary approvals from Governmental Entities). In the New Securities to be purchased by event the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register Corporation has not sold such New Securities in within such time period, the name of each such Holder (and to Corporation shall not thereafter issue or sell any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after without first again offering such 100-day period or on other terms less favorable securities to the issuer, it shall again comply Stockholders in accordance with the procedures set forth in this Section 12.54.4.
(dd.) The Class B Holders hereby acknowledge and agree that Upon the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (consummation of the “Purchasing Member”), acquire issuance of any New Securities in advance of complying accordance with the requirements of this Section 12.54.4, the Corporation shall deliver to the Purchaser certificates (if any) evidencing the New Securities, which New Securities shall be issued free and clear of any Liens (other than those arising hereunder and those attributable to the actions of the purchasers thereof), and each Class B Holder consents the Corporation shall so represent and warrant to the purchaser thereof, and further represent and warrant to such issuancepurchaser that such New Securities shall be, provided thatupon issuance thereof to the Purchaser and after payment therefor, as promptly as practicable thereafterduly authorized, either (i) validly issued, fully paid and non-assessable. The Purchaser shall deliver to the LLP complies with Corporation the requirements purchase price for the New Securities purchased by wire transfer of this Section 12.5 with respect thereto or (ii) immediately available funds. Each party to the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) purchase and sale of New Securities that shall take all such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not other actions as may be under any obligation reasonably necessary to consummate any proposed issuance of New Securities, nor shall there the purchase and sale including entering into such additional agreements as may be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuancenecessary or appropriate.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
Appears in 1 contract
Samples: Series a Preferred Stock Purchase Agreement (Finjan Holdings, Inc.)
Preemptive Rights. (a) The LLP Parties acknowledge that all shareholders of publicly listed Chilean companies, such as the Company, have preemptive rights in accordance with Chilean law. In the event of any change in Chilean law that would adversely affect the preemptive rights of any of the IFC Parties, the Itaú Parties shall give each Class B Holder cause (and the Corp Group Parties shall exercise all such voting rights as are available to it in connection with causing) the Company to, and the Company shall, ensure that is an “accredited investor” the IFC Parties shall have the right to purchase its Pro-Rata Share of New Securities (as defined below) in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) manner set out below, to the extent not in violation of any proposed issuance by Applicable Law.
(b) If the LLP of any New Securities at least five (5) Business Days prior Company proposes to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such issue New Securities, it shall give all shareholders of the Company, including the IFC Parties, written notice of its intention, describing the New Securities, their price, and their general terms of issuance, and specifying the Pro-Rata Share of each Class B Holder such holder of such issuance (the “Issue Notice”). Each shareholder of the Company, including the IFC Parties, shall be entitled have thirty (30) days (or such longer period as provided by Applicable Law) after any such notice is delivered (the “Notification Date”) to give the Company written notice that it agrees to purchase up to its Preemptive part or all of any such shareholder’s Pro-Rata Share of the New Securities proposed to be issued at the price and on the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at for the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities Issue Notice (the “NonSubscription Notice”). Each shareholder of the Company may also notify the Company in the Subscription Notice that it is willing to buy a specified number of the New Securities in excess of its Pro-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Rata Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing issuance (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase RightSecurities”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at for the price and on the terms and conditions specified in the Issuance Issue Notice. For the avoidance of doubt, the number (or amount) of additional Company shall not issue any New Securities specified in such Electing Member’s notice. If, at until after the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightNotification Date.
(c) The LLP shall have 100 days from the date If any shareholder of the Issuance Notice Company has indicated that it is willing to consummate buy Additional Securities, the proposed issuance Company shall give such shareholder written notice of any or all the total number of such New Securities that not taken up by other shareholders of the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of Company (“Unpurchased Securities”) within five (5) Business Days after all days (or such approvals have been received, but in no event later than 120 days from the date longer period as provided by Applicable Law) of the Issuance Noticeexpiry of the thirty (30) day period referred to in Section 4.02(b). At Such notice shall specify the consummation particulars of such issuance, the LLP shall issue payment process for the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights IFC Parties pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5Subscription Notice.
(d) The Class B Holders hereby acknowledge and agree that On the LLP, due tenth (10th) Business Day after expiry of the thirty (30) day period referred to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either 4.02(b): (i) the LLP complies with IFC Parties shall subscribe for the requirements number of this Section 12.5 with respect thereto or their Pro-Rata Shares specified in the Subscription Notice; (ii) if the Purchasing Member offers IFC Parties have indicated that they are willing to buy Additional Securities, the other Class B Holders IFC Parties shall also subscribe for the right lower of the number of Additional Securities and the number of Unpurchased Securities; (iii) the IFC Parties shall pay the relevant consideration to acquire from the Purchasing Member that Company or relevant registrar; (iv) the Company shall register in its share registry and in the name of the IFC Parties the number (or amount) of New Securities that such Holder would for which the IFC Parties have been offered by subscribed; and (v) the LLP under this Section 12.5.
(e) The LLP Company shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP issue new certificates to the Class B Holders if IFC Parties representing the LLP has not consummated any proposed issuance number of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall which the IFC Parties have delivered an Issuance Notice in respect of such proposed issuancesubscribed.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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Preemptive Rights. (a) The LLP shall give 5.1. Subject to the terms and conditions set forth in this Section 5, each Class B Holder that is Investor has the right to purchase from the Company an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) written notice (an “Issuance Notice”) of any proposed issuance by the LLP amount of any New Securities at least five that the Company may, from time to time, propose to issue and sell up to such Investor’s pro rata portion (5as determined by the Investors) Business Days prior of the Ownership Percentage (calculated as of the date of delivery of such Notice of Issuance) to the proposed extent such New Securities are actually issued. 6 To be the eighteen-month anniversary of this Agreement.
5.2. In the event the Company proposes to undertake an issuance date. The Issuance Notice of New Securities, it shall specify give each Investor written notice of its intention, describing the number and class type of such New Securities and the price at and terms upon which the Company proposes to issue such New Securities are (a “Notice of Issuance”). Each Investor shall have thirty (30) days from the date of delivery of a Notice of Issuance to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled Investor to agree to purchase up to its Preemptive Share a portion of the New Securities proposed up to be issued at such Investor’s pro rata portion Ownership Percentage (calculated as of the date of delivery of such Notice of Issuance), for the price and on upon the other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice Notice of its election to purchase such New Securities Issuance. On or prior to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery expiration of such thirty (30) day period, each Investor shall deliver a written notice (which notice shall specify to the number (or amount) Company stating the quantity of New Securities to be purchased by a Class B Holder) by a Class B Holder such Investor (an “Electing MemberInvestor Response”), which written notice shall be binding on the Company and such Investor subject only to the completion of the issuance of New Securities described in the applicable Notice of Issuance.
5.3. The Company shall have 120 days following the earlier of (i) shall constitute a binding the expiration of the thirty (30) day period described in Section 5.2 and (ii) the delivery of each Investor Response and the investor response contemplated by the TCP/AS XXX to sell or enter into an agreement of such Holder to purchasesell the New Securities with respect to which an Investor’s right to purchase was not exercised, at the a price and on the upon terms and conditions no more favorable than those specified in the Issuance Notice, Notice of Issuance. If the number (or amount) of Company does not sell such New Securities specified or enter into an agreement to sell such New Securities within such 120-day period, then the Company shall not thereafter issue or sell any New Securities without first offering such New Securities to the Investors in such Holder’s noticethe manner provided in Section 5.2.
5.4. If, at the termination close of such ten (10) any Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New SecuritiesDay following the date hereof, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If Investors’ Ownership Percentage is less than 100% 10%, then all obligations of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice. At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights Company pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it 5 shall again comply with the procedures set forth in this Section 12.5immediately terminate.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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Preemptive Rights. If the Company or any of its Subsidiaries sells, issues or grants any Equity Securities to any Person (other than a sale by a Subsidiary solely to the Company or one of its wholly owned Subsidiaries), the Company shall deliver to each holder of Warrant Securities in advance of such sale, issuance or grant, a written notice describing in reasonable detail (a) The LLP shall give each Class B Holder that is an “accredited investor” the Equity Securities being offered, (b) the purchase price thereof, (c) the material terms of such Equity Securities and sale, issue or grant and (d) such holder’s Proportional Share (as defined in Rule 501(abelow) of Regulation D promulgated under (the Securities Act) written notice (an “Issuance Rights Notice”) and offering to sell, issue and/or grant to each holder of any proposed issuance by the LLP Warrant Securities a portion of any New such Equity Securities at least five (5) Business Days prior equal to the proposed issuance date. The Issuance Notice shall specify quotient of (i) the number and class of Common Shares held by or issuable pursuant to Warrants held by, such New Securities and holder divided by (ii) the price at which number of Common Shares outstanding (such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, each Class B Holder shall be entitled to purchase up to its Preemptive Share of the New Securities proposed to be issued holder’s “Proportional Share”) at the most favorable price and on the most favorable terms as such Equity Securities are offered to any other terms and conditions specified in the Issuance Notice.
(b) A Class B Holder may Person. In order to exercise its preemptive rights under hereunder, a holder of Warrant Securities must, within 15 business days after receipt of a Rights Notice in accordance with this Section 12.5 by delivering 4, deliver a written notice of its election to purchase such New Securities to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing Member”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of New Securities specified in such Holder’s noticeCompany exercising its preemptive rights hereunder. If, at after the termination expiration of the 15 business day period described in the foregoing sentence with respect to a Rights Notice, a holder of Warrant Securities has not delivered written notice to the Company exercising its preemptive rights hereunder with respect to such Rights Notice, then the preemptive rights of such ten (10) Business Day-periodWarrantholder with respect to the Equity Securities issued as set forth in such Rights Notice shall expire and have no further force or effect. Any sale, a Class B Holder shall not have exercised its rights issuance or grant pursuant to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, 4 shall occur on the purchase of such New Securities. If less than 100% closing date of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, notice of the aggregate number or amount of New Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt of the Issuance Notice. A delivery of such notice applicable transaction (which notice shall specify the number (or amount) closing date may not be earlier than 10 business days of such additional New Securities to be purchased by such Electing Member) by an Electing Member shall constitute a binding agreement of such Member to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number (or amount) of additional New Securities specified in such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase Right.
(c) The LLP shall have 100 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Rights Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than 120 days from the date of the Issuance Notice). At the consummation of such issuance, the LLP shall issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this This Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall again comply with the procedures set forth in this Section 12.5.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 4 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under sale, issuance or grant: (a) in connection with any equity split, dividend, subdivision, combination or other distribution or recapitalization (so long as all holders of Warrant Securities of the same class or series are treated equally with all other holders of Warrant Securities Act.of such class or series);
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Samples: Warrant Purchase Agreement
Preemptive Rights. For so long as the Investors hold in aggregate 5% of the outstanding shares of Common Stock of the Company, each Investor shall have the right to purchase its pro-rata share of New Securities in the manner set out below:
(a) The LLP If the Company proposes to issue New Securities, it shall give each Class B Holder that is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) Investor written notice (an “Issuance Notice”) of any proposed issuance by its intention, describing the LLP of any New Securities at least five (5) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the number and class of such New Securities and the price at which such New Securities are to be issued and the other material terms and conditions of the issuance. If any proposed purchaser will purchase any such New Securities, their price, and their general terms of issuance, and specifying each Class B Holder Investor’s pro-rata share of such issuance (the “Issue Notice”). Each Investor shall be entitled have thirty (30) days after any such notice is delivered (the “Notification Date”) to give the Company written notice that it agrees to purchase up to part or all of its Preemptive Share pro-rata share of the New Securities proposed to be issued at for the price and on the other terms and conditions specified in the Issuance Issue Notice (the “Subscription Notice”). Each Investor may also notify the Company in the Subscription Notice that it is willing to buy a specified number of the New Securities (“Additional Securities”) not taken up by the other Investors (“Unpurchased Securities”) for the price and on the terms specified in the Issue Notice.
(b) A Class B Holder may exercise its rights under this Section 12.5 by delivering notice For the avoidance of its election to purchase such doubt, the Company shall not issue any New Securities until after the Notification Date.
(c) If an Investor has indicated that it is willing to the LLP within ten (10) Business Days of receipt of the Issuance Notice. A delivery of such notice (which notice shall specify the number (or amount) of New buy Additional Securities to be purchased by a Class B Holder) by a Class B Holder (an “Electing MemberOverallotment Investor”) shall constitute a binding agreement of such Holder to purchase, at the price and on the terms and conditions specified in the Issuance Notice), the number (or amount) of New Securities specified in such Holder’s notice. If, at the termination of such ten (10) Business Day-period, a Class B Holder shall not have exercised its rights to purchase its Preemptive Shares of such New Securities, the Holder shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, the purchase of such New Securities. If less than 100% of the Class B Holders shall have exercised their rights to purchase their respective Preemptive Shares of such New Securities (the “Non-Exercising Members”) then the LLP Company shall give each Electing Member which shall have exercised its right to purchase 100% of such Electing Member’s Preemptive Share of such New Securities, Overallotment Investor written notice of the aggregate total number or amount of New Unpurchased Securities not being purchased by the Non-Exercising Members. Each such Electing Member shall have the right to elect to purchase a number or amount of such New Securities equal to the percentage obtained by dividing (x) such Electing Member’s Preemptive Share by (y) the sum of such Electing Member’s Preemptive Shares plus the Preemptive Shares of all such Electing Members (the “Additional Purchase Right”). A Class B Holder may exercise its Additional Purchase Rights under this Section 12.5 by delivering notice of its election to purchase such additional New Securities to the LLP within five (5) Business Days of receipt days of the Issuance Noticeexpiry of the thirty (30) day period referred to in Section 3.06(a). A delivery of such notice (which Such notice shall specify the number (or amount) particulars of such additional the payment process for the New Securities to be purchased by such Electing MemberOverallotment Investor pursuant to the Subscription Notice.
(d) by an Electing Member On the tenth (10th) Business Day after expiry of the thirty (30) day period referred to in Section 3.06(a):
(i) each Investor shall constitute a binding agreement subscribe for the number of such Member to purchase, at the price and on the terms and conditions its pro-rata shares specified in the Issuance Subscription Notice;
(ii) if an Investor has indicated that it is willing to buy Additional Securities, such Overallotment Investor shall also subscribe for the lower of the number of Additional Securities and its pro rata share of the number of Unpurchased Securities;
(or amountiii) each Investor shall pay the relevant consideration to the Company; and
(iv) the Company shall register in the name of additional each Investor the number of New Securities specified in for which such Electing Member’s notice. If, at the termination of such five (5) Business Day-period, a Class B Holder that is an Electing Member shall not have exercised its Additional Purchase Right, the Electing Member shall be deemed to have waived all of its rights under this Section 12.5 with respect to, and only with respect to, such Additional Purchase RightInvestor has subscribed.
(ce) The LLP shall have 100 days from If the date of the Issuance Notice to consummate Company has not consummated the proposed issuance of any or all of such New Securities that the Class B Holders have elected not to purchase at the price and upon terms and conditions that are not less favorable to the LLP than those specified in the Issuance Notice, provided that, if such issuance is subject to regulatory approval, such 100-day period shall be extended until the expiration of five within one hundred twenty days (5120) Business Days after all such approvals have been received, but in no event later than 120 days from following the date of the Issuance Notice. At the consummation of such issuance, the LLP shall Company may not issue the New Securities to be purchased by the Class B Holders should they exercise their preemptive rights pursuant to this Section 12.5 (and to any third party) and register such New Securities in the name of each such Holder (and to any third party), against payment by such Holder (and to any third party) of the purchase price for such New Securities. If the LLP proposes to issue any class of New Securities after such 100-day period or on other terms less favorable to the issuer, it shall without again comply complying with the procedures set forth in this Section 12.53.06.
(d) The Class B Holders hereby acknowledge and agree that the LLP, due to timing constraints, confidentiality considerations, or other reasons, may request that a Class B Holder (the “Purchasing Member”), acquire New Securities in advance of complying with the requirements of this Section 12.5, and each Class B Holder consents to such issuance, provided that, as promptly as practicable thereafter, either (i) the LLP complies with the requirements of this Section 12.5 with respect thereto or (ii) the Purchasing Member offers the other Class B Holders the right to acquire from the Purchasing Member that number (or amount) of New Securities that such Holder would have been offered by the LLP under this Section 12.5.
(e) The LLP shall not be under any obligation to consummate any proposed issuance of New Securities, nor shall there be any liability on the part of the LLP to the Class B Holders if the LLP has not consummated any proposed issuance of New Securities pursuant to this Section 12.5 for whatever reason, regardless of whether it shall have delivered an Issuance Notice in respect of such proposed issuance.
(f) Notwithstanding the foregoing, the provisions contained in this Section 12.5 shall not apply to any Initial Public Offering made pursuant to an effective registration statement filed under the Securities Act.
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